author: EMBRY, Justice.

text:
    Pansy and Earl FURGERSON v. DRESSER INDUSTRIES, INC. et al.
    82-262.
    Supreme Court of Alabama.
    Aug. 26, 1983.
    Donald R. Simms, Jr., Watson & Moore, Huntsville, for appellants.
    Benjamin R. Rice of Williams, Spurrier & Rice, Henderson & Grace, Huntsville, for appellee Dresser Industries, Inc.
    L. Tennent Lee of Cleary, Lee, Morris, Evans & Rowe, Huntsville, for appellee Thrasher Oil Co. and Handy Food Stores.
   EMBRY, Justice.

This is an appeal by plaintiffs below, Mr. and Mrs. Furgerson, from summary judgments entered in favor of Dresser Industries, Inc., Thrasher Oil Company, and Handy Food Stores, Inc. We reverse as to Thrasher and Handy and affirm as to Dresser.

Handy Food Stores operates a convenience store at premises occupied by it containing a self-service gasoline pump island upon which are situated three pumps designed and manufactured by Dresser Industries, purchased from Service Equipment Company by Thrasher Oil Company and installed by Huntsville Pump Company.

During August 1980, Pansy Furgerson went to the Handy Store to buy gasoline for her automobile. She stopped at the pump island, got out of her car, walked around the pumps, entered the store and handed the cashier money to pay for gasoline, returned to her automobile by again walking around the pumps, and pumped gas into the tank of her automobile. She then began a return walk to the store in order to get change from the money she had left with the cashier. On this last walk she was in the process of crossing over the pump island. As she walked toward the store, the physical appearance of the pumps, island, and entrance was as illustrated by this reproduction of a photograph in evidence as a part of that upon which the motions for summary judgment were submitted:

As she was crossing over the island at a point between the left-most pump depicted in the photograph and the column supporting the canopy over the pumps, she looked down before stepping up and, in striding forward, struck her head against the arm of the pump containing the price and gallon-age meters. She fell backward to the pavement and suffered injuries to her head, left hand, left hip and left elbow, requiring hospitalization and surgery.

Suit was filed claiming damages on the theories of the Alabama Extended Manufacturer’s Liability Doctrine and that of premises liability. The Furgersons say the issue is whether there is a genuine issue of material fact yet to be resolved. With this, Thrasher Oil, Handy Stores, and Dresser Industries agree. This court also agrees.

The Furgersons’ only claim against Dresser, when viewed under the evidence upon which the Dresser motion for summary judgment was submitted, would necessarily fall under the Alabama Extended Manufacturer’s Liability Doctrine. There is no set of provable facts under that doctrine by which the Furgersons could recover; On the contrary, under the evidence in this case, Dresser has shown there is lacking any genuine issue of material fact and the Fur-gersons have not shown otherwise. See Worley v. Worley, 388 So.2d 502 (Ala.1980), and Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991 (Ala.1981), Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corporation, 335 So.2d 134 (Ala.1976).

Turning now to an examination of the theories upon which the Furgersons seek to recover against Thrasher and Handy, we can readily see that factual disputes will have to be resolved in order that an ultimate disposition of the claims of the Fur-gersons against those two defendants may be made; therefore, summary judgments in their behalf are inappropriate.

One only need examine the photograph depicting the placement of the pumps, to immediately conclude there are genuine issues of material facts regarding whether there was negligence in the physical placement and maintenance of these particular pumps at the Handy premises. There are three pumps on the island. Under and alongside the arm of two of them are concrete or cement filled pipes. These serve as protection to those persons crossing the island, at the site of those two pumps, from coming in contact with the arms of two of the pumps. Obviously, someone deemed that arrangement a reasonably necessary precaution against the possibility that the pump arms present a potentially dangerous or injury producing instrumentality. As stated by them in brief, Handy and Thrasher owed Mrs. Furgerson the duty to maintain the premises in a reasonably safe condition, to warn of hidden defects or dangers, and to protect her from dangerous structures that might result in or cause her injury. We might enlarge upon that to state: and also to take reasonably necessary precautions against reasonably foreseeable harm that might result from the existence of structures that are open and obvious, but concerning which the dangerous potential is not so open and obvious.

Suppose the danger from the left-most pump arm is open and obvious, does it follow that Mrs. Furgerson appreciated that danger when last traversing the island at that point in time simply because she had traversed the island twice previously on that occasion? That would be a matter of affirmative defense for resolution by a jury. The situation here only differs as to the element of time from an obvious hypothetical: Mrs. Furgerson repairs to a local hotel to attend the weekly meeting of her ladies’ bridge club being held in a private dining room. In order to gain entrance to the private dining room she must go through the public dining room. In so doing, she reaches a step-up at the door to the private room, the door opens outward over the step-up, she enters uneventfully. Three hours later she is leaving, reaches the door (there is no “watch your step,” “caution — step-down” or other warning), pushes it outward and misses the step-down, falling and suffering injuries. Is she consciously aware of the danger at that moment, having traversed the allegedly open and obvious danger entered three hours earlier simply because it was visible? In other words, did she have a conscious appreciation of any danger presented by the physical conditions that made up the entrance-exit way at the time she fell and was injured? Only a jury may answer those questions, just as only a jury has a right to determine if Pansy Fur-gerson was guilty of contributory negligence at the time of her fall and injury in this case.

Also, only a jury may resolve the issue of negligence of Handy and Thrasher, vel non, in connection with the placement and maintenance of those particular style pumps under the particular facts of this case, including the placement and maintenance of pipes in the manner done in this case. It would be for a jury to say whether, under conceivable facts that might be proved in this case, there was negligence upon the part of Handy and Thrasher. The evidence shows that genuine issues of facts exist and Handy and Thrasher have not proved to the contrary. Rule 56, ARCP, and see generally, Coggin v. Starke Bros. Realty Co., 391 So.2d 111 (Ala.1980). .

This court having determined that summary judgments were improvidently entered in behalf of Handy Food Stores, Inc. and Thrasher Oil Company, those judgments are due to be, and are hereby, reversed and this case remanded for further proceedings consistent with this opinion.

AFFIRMED AS TO DRESSER INDUSTRIES, INC. REVERSED AND REMANDED AS TO HANDY FOOD STORES, INC. AND THRASHER OIL COMPANY.

TORBERT, C.J., and FAULKNER and ADAMS, JJ., concur.

ALMON, J., concurs in result.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Hazel JACKSON v. MONTGOMERY ELEVATOR, a Corporation.
    82-714.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    Samuel F. Irby, Jr., Mobile, for appellant.
    Robert G. Kendall of Johnston, Johnston & Kendall, Mobile, for appellee.
   PER CURIAM.

Affirmed on the authority of Conley v. Harry J. Whelchel Co., 410 So.2d 14 (Ala.1982).

AFFIRMED.

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

JONES and ADAMS, JJ., dissent.

JONES, Justice

(dissenting).

I dissent for the reasons expressed in my dissenting opinion in Conley v. Harry J. Whelchel Co., 410 So.2d at 15 (Ala.1982).

ADAMS, J., concurs.


author: TORBERT, Chief Justice. JONES, Justice

text:
    Martin Luther WILLIAMS, Jr., et al. v. Alvin WILLIAMS and Eljo Williams.
    82-70.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Gary L. Phillips, Gadsden, for appellants.
    John Baker, Fort Payne, for appellees.
   TORBERT, Chief Justice.

This appeal involves an action brought by two brothers, Alvin and Eljo Williams (“ap-pellees”), against their father, remaining brothers and sisters, the estate of T.L. Williams, and the administrator of the estate of T.L. Williams (“appellants”), seeking to enforce a partnership dissolution agreement (“Dissolution Agreement”) between appel-lees and their deceased brother, T.L. Williams.

Appellees contend that, under the Dissolution Agreement, upon the death of T.L. Williams they became sole owners of all the assets of the partnership, Williams Granary and Feed Company, and, in addition, were entitled to life insurance proceeds from the policies insuring the life of T.L. Williams.

Appellants contest the validity of the Dissolution Agreement, primarily contending that the Agreement should not be enforced because it is an attempted testamentary disposition of property which does not comply with the statutes regarding testamentary dispositions and is not supported by valid consideration.

Following an ore tenus hearing, the trial court entered an order divesting appellants (the heirs-at-law other than the surviving partners) of any and all right, title, claim, and interest in the partnership, while, vesting such title and interest solely in appel-lees (the surviving partners). The trial court denied appellants’ motions for a new trial or modification of judgment, and they appealed. We affirm.

Because of the importance of the Dissolution Agreement to the disposition of this appeal, we quote the relevant provisions:

“WHEREAS, the partners are doing business as a partnership under the firm name of Williams Granary and Feed company, and each of the above named partners own an undivided one-third interest in said partnership and its assets, including lands and cattle, and
“WHEREAS, the partners consider it to be to the mutual advantage of themselves and their respective estates and heirs at law, to enter into an agreement whereby, upon the death of the partner first to die, and which partner is sometimes referred to hereinafter as the ‘deceased partner,’ then the heirs at law and the estate of the deceased partner shall be obligated to sell to the surviving partners and the surviving partners shall be obligated to purchase the interest of the deceased partner in the partnership and its assets, including lands and cattle, and the surviving partners shall have the opportunity to continue the partnership business uninterrupted, and
“WHEREAS, the partners mutually desire to use life insurance to achieve these objectives, and
“WHEREAS, the partners mutually agree that the sum of THIRTY-FIVE THOUSAND AND NO/lOO DOLLARS ($35,000) shall be the fair reasonable market value of each partner at the time of his death, and
“WHEREAS, partner Alvin Williams is the named insured in Policy # 437919, insuring him for $25,000 natural death . .. and Policy # 467314, insuring him for $10,000 natural death, with total death benefits of $35,000....
“WHEREAS, partner Eljo Williams is the named insured in Policy # 437920, insuring him for $25,000 natural death ..., and Policy # 467313, insuring him for $10,000 natural death, with total death benefits of $35,000....
“WHEREAS, partner T.L. Williams is the named insured in Policy # 437921, insuring him for $25,000 natural death ..., and Policy # 467315, insuring him for $10,000 natural death, with total death benefits of $35,000....
“NOW THEREFORE, in consideration of the premises, and the further consideration of the mutual agreements and covenants of the parties hereto as hereinafter set forth, the parties hereby agree, each with the other, as follows:
“(1) That all premiums on the herein-above referred to policies of insurance ... shall be paid out of partnership funds....
“(2) Upon the death of any partner, the partnership shall be continued by the surviving partners, and the estate of the deceased partner and his heirs at law, shall transfer and sell and convey to the surviving partners, all the right, title and interest in and to any other partnership assets, including lands and cattle, owned by the deceased partner at the time of his death, and which transfer, sale and conveyance by the estate of, or the heirs at law of such deceased partner, shall be in return for the sole consideration of the payment of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000) to the hereinafter designated beneficiary of such deceased partner, and upon the payment of said life insurance proceeds of $35,000, the estate of the deceased partner and his heirs at law, shall have no further right, title and interest in the partnership or any of its assets, including lands and cattle.
“(3) Upon the death of a partner, the surviving partners shall proceed to collect the proceeds of the above named policies insuring the life of the deceased partner, and shall pay to the hereinafter named beneficiary of the deceased partner the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000), and which said sum represents the fair reasonable market value at the time of death of all the right, title and interest in the partnership or any of its assets, including lands and cattle, of such deceased partner, and said payment shall be made without delay upon securing from such designated beneficiary and the heirs at law and the executor or administrator of the estate of the deceased partner, all necessary and properly executed instruments necessary to effectuate the transfer of all the right, title and interest of the deceased partner in the partnership or any of its assets, including lands and cattle.
“(4) Partner Alvin Williams does hereby designate as his beneficiary of the proceeds of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000) as his interest in the partnership, his beloved wife, Joyce Williams, if she be living at the time of his death.
“(5) Partner Eljo D. Williams, does hereby designate as beneficiary of the proceeds of THIRTY-FIVE THOUSAND AND NO/100 dollars ($35,000) as his interest in the partnership, his beloved wife, Illa Va Williams, if she be living at the time of his death.
“(6) Partner T.L. Williams, does hereby designate as beneficiaries of the proceeds of THIRTY-FIVE THOUSAND AND NO/lOO DOLLARS ($35,000) as his interest in the partnership, his two beloved brothers, Alvin Williams and Eljo D. Williams, share and share alike.
“(9) It is agreed that the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000) shall represent the fair reasonable market value of all the right, title and interest in and to the partnership and its assets, including lands and cattle, of any partner at the time of his death, and in no event shall any estate of the deceased partner or his heirs at law or beneficiary receive more than the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000) for the interest of such deceased partner in the partnership and its assets, including lands and cattle, unless this instrument be modified in writing, signed by each of the partners.
«
“(11) The surviving partners and the executor or administrator of the deceased partner’s estate and his heirs at law and beneficiaries, shall make, execute and deliver any and all documents necessary to carry out the purposes and intent of this agreement, and this agreement shall be binding upon the surviving partners, their legal representatives and assigns, and upon the executor or administrator of the estate of the deceased partner and his heirs at law and beneficiaries, and their successors and assigns.
“(12) The surviving partners, upon the death of a partner, shall not be required to make any inventory or accounting of partnership assets to the executor or administrator of the estate of the deceased partner, nor to his heirs at law or beneficiaries, and the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000) shall represent the fair reasonable market value of the interest and ownership of the deceased partner in said partnership and its assets, including lands and cattle, at the time of the death of such partner.
“(13) Upon payment of the sum of THIRTY-FIVE THOUSAND AND NO/100 DOLLARS ($35,000), to the designated beneficiary as hereinabove set forth, the surviving partners shall then be entitled to all profits of the partnership, and shall bear all losses after the date of the deceased partner’s death, and shall be liable for any and all partnership debts and liabilities existing at the time of the death of such deceased partner and no interest or ownership on the partnership assets, including lands and cattle, shall pass to anyone by will or inheritance.”

In accordance with terms and provisions of the Dissolution Agreement, the surviving partners as beneficiaries collected the $35,-000 life insurance and demanded that T.L.’s remaining heirs transfer and convey to them his one-third interest in the partnership without any offer to pay over any sum to the other heirs. When the heirs rejected this demand, this action was filed.

The issue presented is whether the Dissolution Agreement is an attempted testamentary disposition of property which does not comply with the statutes regarding testamentary dispositions and is not supported by valid consideration. Appellants do not contend that appellees are not entitled to the life insurance proceeds of $35,-000. The designation of the beneficiary of a life insurance policy is governed by the provisions of the policy, Outling v. Young, 398 So.2d 256, 258 (Ala.1981), Mutual Savings Life Insurance Co. v. Hall, 254 Ala. 668, 671, 49 So.2d 298, 302 (1951), and such policies are not testamentary.

Alabama law has long recognized that one may validly contract that at his death another may acquire his property on stated terms, provided the contract is based on a valuable consideration. See Cowin v. Salmon, 13 So.2d 190, 244 Ala. 285 (1943). In particular, a disposition of partnership interests by way of contract, effective upon the death of the partner and supported by valid consideration, though not in compliance with the statutes regarding testamentary dispositions, is legal and enforceable. See More v. Carnes, 309 Ky. 41, 214 S.W.2d 984 (1948).

This case is remarkably similar to More v. Carnes. In More, the estate of the deceased partner challenged the validity of a partnership agreement which vested the decedent’s partnership interest in the remaining partners in exchange for a life insurance policy. The partnership agreement named the widow of the decedent as the policy beneficiary. The Kentucky Court of Appeals held that “the Partnership Agreement here involved was not testamentary in nature and was not required to be executed in conformity with our statute of wills.... ” 309 Ky. at 54, 214 S.W.2d at 991. The More court also held that the insurance policy was sufficient consideration to support the agreement’s enforceability. The court made no issue of the fact that the life insurance proceeds were paid to the widow in derogation of the estate.

In the present case, the Dissolution Agreement awkwardly sought to provide the means of purchasing the deceased partner’s interest for a predetermined price through life insurance proceeds. A life insurance policy serves as legally adequate consideration in exchange for the deceased partner’s interest in the partnership unless the terms of the agreement were manifestly unjust at the time of the agreement’s making. There can be no question that the $35,000 insurance policy on the life of T.L. constituted valuable consideration for his partnership interest upon his death. Therefore, the Dissolution Agreement is valid and enforceable. The designation of the beneficiary of the life insurance is a separate question from consideration for the underlying executory contract, and, as previously discussed, such designation is not a testamentary disposition.

This opinion does not alter the framework under which this Court examines the validity of partnership agreements. On the contrary, the surviving partners and the deceased partner’s estate will be required to carry out partnership dissolution agreements just as they were before this decision. The fact that the decedent selected his partners, as opposed to his spouse or estate, as beneficiaries of the life insurance (the consideration for transfer of his partnership share) is unquestionably permissible. Partners continue to be free to select whomever they wish to benefit from insurance on their lives. If the decedent had intended that his wife or estate receive the proceeds of his life insurance policy, then he must name them as beneficiaries or clearly indicate that the partners, as beneficiaries, are acting as trustees for them.

The other issues raised by appellants are unpersuasive. The trial court had proper jurisdiction under the authority of ' Dorrough v. McKee, 264 Ala. 663, 89 So.2d 77 (1956). The trial court’s finding that certain real property belonged to the partnership is not clearly and palpably incorrect. See § 10-8-70(b), Code 1975. Nor is an action to quiet title or convey real property barred by the Alabama Statute of Nonclaims, § 43-2-350, Code 1975. See Wadsworth v. Hannah, 431 So.2d 1186 (Ala.1983).

We affirm the trial court’s order divesting defendants of any interest or claim in the partnership, and vesting T.L.’s partnership interest solely in the surviving partners, Alvin and Eljo.

AFFIRMED.

ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX, FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting).

I respectfully dissent.

In order to clarify the issue presented, it is essential at the outset to understand what is not presented: (1) We need not address what result would obtain had either of the other two partners died first. Our function is restricted to the settlement of the controversy between the parties before us. (2) The facts of this case do not present the issue whether a partnership agreement, which seeks to devise property of one partner upon death to the surviving partners, is a testamentary disposition subject to the statutes regarding such dispositions. Nowhere in the dissolution agreement is there any reference to transfer of the deceased partner’s interest, upon the incident of death, to the surviving partners. To the contrary, the partners agreed that it was “to the mutual advantage of themselves, and their respective estates at law, to enter into an agreement whereby, upon the death of the partner first to die ..., then the heirs at law and the estate of the deceased partner shall be obligated to sell ... and the surviving partners shall be obligated to purchase the interest of the deceased partner in the partnership.”

I acknowledge the existence of a well-established body of law to the effect that partnership transfers by way of contract, effective upon death of the transferring partner and supported by valid consideration, though not in compliance with the statutes regarding testamentary dispositions, are legal and enforceable. For an excellent discussion of several cases so holding, see More v. Carnes, 309 Ky. 41, 214 S.W.2d 984 (1948) (relied upon by the majority). The dissolution contract before us, however, sought only to provide, through life insurance proceeds, the means by which the surviving partners could purchase, for a predetermined price, the deceased partner’s interest from his estate.

The precise issue here presented, then, is whether the trial court erred in giving effect to the dissolution agreement so as to divest the deceased partner’s estate of all interest in the partnership without requiring the surviving partners to pay the $35,-000 death benefit to the estate.

The trial court’s holding sustained the surviving partners’ request to enforce the dissolution agreement by requiring the deceased partner’s heirs-at-law to convey their partnership interest, without a tender of the life insurance proceeds in payment for such interest. This interpretation necessarily treats the life insurance beneficiary designation and the buy/sell language as inconsistent and irreconcilable provisions of the contract. Admittedly, if the deceased partner had designated as beneficiary of the life insurance proceeds someone other than the two surviving partners, an irreconcilable conflict may have arisen. Where, as here, however, the two surviving partners— the obligors under the buy/sell provisions— are the beneficiary designees, the contract is fully enforceable so as to carry out its clearly expressed design and purpose.

In unambiguous terms, the preamble provisions of the dissolution contract provide that the surviving partners are to use the insurance proceeds to purchase the deceased partner’s interest from his estate or heirs-at-law. The manifest intent of the contracting parties, clearly expressed in the agreement, was to provide insurance whereby the proceeds could be used to purchase, for a fixed price, the partnership interest from those heirs of the deceased partner who became vested with such interest upon the partner’s death, rather than to effectuate passage of interest in the partnership to the surviving partners upon the triggering legal incident of death. Any provision purporting to delineate by name those entitled to take as heirs-at-law of any partner dying intestate, absent any valid contractual conveyance as among those partners, is clearly an attempted testamentary disposition vio-lative of the statutes. See Cowin v. Salmon, 244 Ala. 285, 13 So.2d 190 (1943); Ala. Code 1975, § 43-1-30; 94 C.J.S. Wills §§ 111, 165, and 167 (1956).

It goes without saying that the deceased partner’s interest in the partnership resided with someone at all times. When T.L. died intestate, having not conveyed his interest upon death to the surviving partners by contract, his interest passed to his estate. It follows, then, that the provision which designates the surviving partners as beneficiaries of the $35,000 — the fixed value of the deceased partner’s interest — as well as the buy/sell provisions, is valid and enforceable upon the surviving partners’ purchase of the one-third partnership interest from T.L. Williams’s remaining heirs-at-law. Otherwise, in my opinion, these remaining heirs-at-law will continue to possess their share of the one-third interest until a proper accounting and payment for that interest is made. Stated differently, I would hold that a conveyance by T.L. Williams’s remaining heirs-at-law cannot be compelled until payment is received.

The unfortunate result of the majority opinion is to upset literally hundreds of outstanding partnership dissolution contracts where life insurance is provided as the means by which surviving partners may continue the partnership operation by purchasing, at a price fixed by the contract, the deceased partner’s interest from his estate. Pursuant to the holding of the majority, the surviving partners, as the named beneficiaries, may ignore the contractual obligation to purchase, retain the life insurance proceeds, and judicially require the deceased member’s estate to transfer to them its acquired interest in the partnership. Indeed, any payment by the surviving partners to the estate or heirs-at-law of the deceased partner would be a mere gratuity.

MADDOX and FAULKNER, JJ., concur.

      . The partnership agreement in More provided that the policy be paid to “Dorothy D. Carnes, wife of Russell L. Carnes, if living, if not living then the children of Russell L. Carnes.” 309 Ky. at 43, 214 S.W.2d at 985.

      . In More, the widow of the deceased partner brought suit against the surviving partner, claiming that the dissolution agreement was unenforceable as violative of the statute of wills and that the life insurance proceeds represented only about one-third of the value of her deceased husband’s interest in the partnership. The explicitly stated issue was whether a partnership dissolution agreement which vested, upon death, the deceased partner’s interest in the surviving partners and provided as consideration life insurance proceeds (equal to a predetermined value of each partner’s interest) payable to the deceased partner’s widow, was void as violative of the statute of wills. The majority views this as a distinction without a difference. I view the instant case and More as presenting materially different issues, requiring different results.


author: ALMON, Justice. JONES, Justice

text:
    MAINTENANCE INCORPORATED, a Corporation v. HOUSTON COUNTY, ALABAMA, a Political Subdivision of the State of Alabama.
    82-82.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Alan C. Livingston and Huey D. Mclnish of Lee & Mclnish, Dothan, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest and Richard H. Ramsey, III, Do-than, for appellee.
   ALMON, Justice.

This is an appeal from a summary judgment granted in favor of a county which terminated its contract with a solid waste disposal corporation for noncompliance with the competitive bid law. The contract was originally negotiated as a result of another agreement between the parties which did comply with the bid law.

In 1976, Houston County (the County) let a contract for the collection and disposal of solid wastes. Maintenance Incorporated (Maintenance) was the low bidder and was awarded the contract on March 15, 1976. The contract, which provided for monthly payments to Maintenance, would expire four years from the date of award unless the County exercised its option to cancel the contract at the end of any 12-month period with 90 days’ notice. Maintenance was in turn given the right to negotiate for a new agreement after giving written notice at least 90 days prior to the end of the four-year term.

Maintenance performed its duties under the 1976 agreement without any objections from the County. Prior to the expiration of the 1976 contract term, Maintenance duly notified the County of its desire to renegotiate a one-year extension of the contract, and both parties subsequently entered into negotiations. During one meeting, the County attorney stated in the presence of both parties that the second agreement need not comply with the competitive bid law to be valid. On April 14, 1980, the parties executed a second contract for garbage collection services which would terminate on September 30, 1981. Unlike the 1976 contract between the parties, the 1980 contract was not let on a competitive bid basis and did not contain a renegotiation clause. The County, however, had the option to cancel the 1980 contract upon 60 days’ written notice if the state or federal government failed to appropriate funds sufficient to satisfy the monthly payments to Maintenance.

Maintenance received payment for its performance under the second contract until December 31, 1980, when the County terminated the contract without any allegations of inadequate performance on the part of Maintenance and without any proof of insufficient funding. At the time of cancellation, Maintenance was ready, willing, and able to perform its remaining services under the contract.

Maintenance then filed suit against the County in circuit court for breach of contract. The County filed a motion to dismiss, alleging that the contract was void as a matter of law due to noncompliance with the competitive bid law. Although the trial judge denied this motion, the County raised this same defense in its answer and also included the assertion that its termination complied with the notice provision contained in the contract. The County, however, failed to include in its answer any allegation that either the state or federal government failed to appropriate the funds necessary to satisfy its contractual obligation to Maintenance.

On November 12,1981, the County filed a motion for summary judgment and attached affidavits of the County commissioners. In opposition to this motion, Maintenance filed the affidavits of its President, Glenn F. Wise. The motion for summary judgment was submitted to the court upon the argument and briefs of both parties, and the court granted the motion in favor of the County. Maintenance then filed its notice of appeal to this Court.

The issues presented on appeal are 1) whether the 1980 contract between the County and Maintenance was subject to the competitive bid requirement of Code 1975, § 41-16-50(a)(l); 2) whether the 1980 contract constituted a renewal of the 1976 contract between the County and Maintenance and was thereby protected by the 1976 competitive bid; and 3) whether the existence of an estoppel presented questions of fact beyond the province of a summary judgment.

I. The Competitive Bid Requirement

Section 41-16-50(a)(l), Code 1975, provides in pertinent part that all service contracts involving $2,000.00 or more entered into by the governing boards of counties be awarded by “free and open competitive bidding, on sealed bids, to the lowest responsible bidder .... ”

Maintenance argues, however, that under the authority of Code 1975, § 22-27-27, the provisions of the Solid Wastes Disposal Act, Code 1975, § 22-27-1 et seq., are repugnant to and thereby supersede the competitive bid law. In support of this contention, Maintenance cites the following statutory provisions: 1) Code 1975, § 22-27-3(a), which provides that the “county commission or municipal governing body may provide [garbage] collection or disposal services by contract with private ... agencies . .. and 2) Code 1975, § 22-27-5(a), which provides that a “county commission or public authority may enter into mutual agreements or contracts with the government bodies of other counties, municipalities, corporations or individuals, where deemed to be mutually economical and feasible, to jointly or individually collect, haul and/or dispose of solid wastes .... ”

Maintenance then refers to Code 1975, § 41-16-51(a)(10), the May 4, 1982, amendment to the competitive bid law, which exempts all existing contracts up for renewal for solid waste disposal from the competitive bid requirement. Maintenance posits that this amendment further clarifies the preexisting legislative intent to exclude its 1980 contract from the bid law.

Although we do not question the authority of the County to enter into the 1980 contract with Maintenance pursuant to Code 1975, § 22-27-3(a), we do not agree with the conclusion that this contract was exempt from the competitive bid requirement of Code 1975, § 41-16-50(a)(l).

A comparison of the Solid Wastes Disposal Act and the competitive bid law prior to the 1982 statutory amendment reveals no repugnancy between the two enactments. The former only grants counties the authority to contract with private agencies for the disposal of solid wastes and the latter, when incorporated therein, prescribes the procedure for awarding these contracts. Code 1975, § 22-27-27, moreover, only applies to the financing of these contracts, and can in no way uphold the negotiation and execution of a solid waste contract between a county and private agency which failed to comply with the bid law.

Furthermore, the fact that the legislature expressly enacted an exemption for solid waste disposal contracts from the competitive bid law militates in favor of the view that, prior to the amendment, such contracts were subject to the bid law. Any interpretation to the contrary would render the amendment superfluous, and we cannot presume that the legislature used language without meaning or application. Robinson v. State, 361 So.2d 1113 (Ala.1978), on remand, 361 So.2d 1115 (Ala.1978). We therefore hold that the 1980 contract between the County and Maintenance was subject to the competitive bid requirement of § 41-16-50(a)(l).

II. The Renegotiation Provision

Maintenance characterizes the 1980 contract as a renewal of the 1976 contract and contends that its compliance with the bid law in 1976 obviated the necessity of further compliance with the bid law in 1980.

The 1976 contract, however, provided for a four-year term and was therefore void as a matter of law under the authority of Code 1975, § 41-16-57(e), which requires that service contracts be let for no longer than three-year periods. The 1980 contract could not logically be characterized as a renewal of a void agreement and must perforce be deemed a separate contract subject to the bid law. The failure to comply with the competitive bid law therefore renders the 1980 contract void in accordance with Code 1975, § 41-16-51(d).

III. Estoppel

Maintenance contends that the County is estopped from denying the validity of the 1980 contract because the president of Maintenance detrimentally relied upon the assurances of the County attorney that the contract would be valid without the necessity of receiving competitive bids.

Maintenance cannot, however, by way of estoppel, endow with validity a transaction which is illegal and against public policy. Cochran v. Ozark Country Club, Inc., 339 So.2d 1023 (Ala.1976). Where the 1980 contract between Maintenance and the County was void for noncompliance with the bid law, the principle of estoppel could not be utilized to create the contract anew. Bates v. Jim Walter Resources, Inc., 418 So.2d 903 (Ala.1982).

Where, moreover, the legislature has expressed its public policy of voiding contracts which do not comply with the competitive bid law, we decline to expand the scope of our holding in Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977), which upheld an estoppel argument against city officials who merely failed to follow the formalities of contract execution.

The judgment granting a summary judgment on behalf of Houston County is therefore affirmed.

AFFIRMED.

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

JONES, J., dissents.

JONES, Justice

(dissenting).

I respectfully dissent. I would reverse on the authority of Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977).


author: ALMON, Justice.

text:
    Sandra Shade TRIMBLE v. The CITY OF PRICHARD, et al.
    82-264.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      James D. Wilson, Mobile, for appellant.
    Otto E. Simon and J. Randall Crane, Mobile, for appellees.
   ALMON, Justice.

This is an appeal from a summary judgment upholding the constitutionality of a municipal ordinance which prescribed criminal penalties for its violation. At the time the original declaratory judgment action was filed, a separate criminal proceeding to enforce the ordinance was pending against the appellant.

On October 15, 1980, the Prichard City Council passed Ordinance # 1536 which levied a monthly fee or tax on certain classes of Prichard citizens to defray the costs of public services. The ordinance required that Prichard citizens who either lived in homes equipped with kitchens or received city water services at their home or business pay the city a $5.00 monthly fee. Citizens who failed to pay the monthly fee and the additional $3.00 late charge would be guilty of a misdemeanor and fined not less than $10.00 nor more than $100.00 if convicted.

Sandra Shade Trimble, a resident of Prichard whose home contained a kitchen and who received city water services, failed to pay the assessment imposed by Ordinance # 1536 as amended. The City of Prichard then issued arrest warrants against Trimble, who was subsequently arrested, charged, and convicted of violating the ordinance. Her conviction is presently on appeal to the Mobile County Circuit Court.

After Trimble’s arrest but before her conviction, she filed a declaratory judgment class action against several city defendants, urging the trial court to find Ordinance # 1536 as amended unconstitutional, in violation of the equal protection clause of the fourteenth amendment to the United States Constitution and in contravention of the limited taxing powers of a municipality. She also sought a temporary restraining order (TRO) and a permanent injunction prohibiting the enforcement of the ordinance in the pending criminal actions.

Although the trial court granted Trim-ble’s request for a TRO on September 24, 1981, the court subsequently conducted a hearing and dissolved its order on February 17, 1982. No class was established.

Both parties then filed motions for summary judgment, and the trial court granted' summary judgment in favor of the city defendants based upon the pleadings, affidavits, and in-court testimony received during the TRO dissolution hearing. Trimble filed a notice of appeal but failed to include the transcript or a summary of the TRO dissolution hearing in the record on appeal.

Jurisdiction of a declaratory judgment action will not be entertained where another proceeding is pending at the time of the declaratory judgment action to which the same persons are parties and in which the same issues may be adjudicated. Mathis v. Auto-Owners Ins. Co., 387 So.2d 166 (Ala.1980). The circuit court, exercising its equity powers, was therefore without jurisdiction to entertain Trimble’s declaratory judgment action against the City of Prich-ard which contested the constitutionality of Ordinance # 1536 as amended where a separate criminal proceeding brought by the City of Prichard to enforce the ordinance was pending against Trimble.

Because lack of subject matter jurisdiction can never be waived or supplied by consent, it is of no consequence that neither party raised the issue on appeal. Alabama State Bar v. Watson, 289 Ala. 729, 272 So.2d 240 (1972); Rinehart v. Reliance Life Ins. Co. of Ga., 272 Ala. 93, 128 So.2d 503 (1961).

Because the civil court was without jurisdiction to entertain the declaratory judgment action, the judgment was coram non judice and therefore void. The appeal from such void judgment is due to be dismissed.

Moreover, appellant’s failure to comply with the Alabama Rules of Appellate Procedure also warrants dismissal of her appeal. A.R.A.P. 2(a)(2)(D).

The corrected final order which granted summary judgment shows that the case was submitted on the pleadings, affidavits, and in-court testimony of certain witnesses. Although a court reporter was present during the hearing, it is unclear whether the testimony of the witnesses was recorded. Trim-ble’s designation of the record on appeal contains the pleadings and affidavits but does not contain a transcript of the witnesses’ testimony, or a statement thereof in accordance with Rule 10, A.R.A.P. Her designation, moreover, was filed forty days after filing the notice of appeal, in contravention of Rule 10(b)’s mandate that designations be filed no later than seven days after filing notice of appeal. Trimble, who designated less than all of the proceedings, also failed to serve on the city defendants a statement of the issues she intended to present on appeal in accordance with Rule 10(b), A.R.A.P. Approximately 64 days after filing the notice of appeal, Trimble attempted to cure her failure to include the transcript of the hearing in the appellate record by proposing that a stipulation be filed omitting the reporter’s transcript from the record. However, Rule 10(d), A.R.A.P., requires that the appellant’s statement of the proceedings be served upon the appellee within 49 days after notice of appeal. The city defendants were unable to comply with this tardy request because Trimble failed to include a statement of the issues. Trimble filed nothing further relating to the record.

The city defendants argue that the failure of Trimble to file the required designations in a timely manner and the failure to set forth a statement of the issues placed them in a position where they could not intelligently decide whether to accept her designation. Because the city defendants could not unilaterally provide a statement of the proceedings omitted from her designation, they contend that this Court has no alternative but to affirm the judgment of the trial court, which had before it evidence unavailable to this Court.

Previously, the trial court’s findings and conclusions on the facts would not be reviewed when it affirmatively appeared there was evidence before the trial court that was not in the record on appeal. Davis v. Wolff, 53 Ala.App. 700, 304 So.2d 201, reversed on other grounds, 293 Ala. 408, 304 So.2d 203 (1974). The new appellate rules purportedly abolished this principle by allowing both parties an equal opportunity to designate matters for inclusion in the record. Committee Comments, A.R.A.P. 10. Where, however, equal opportunity does not exist, we have conclusively presumed that the omitted evidence is sufficient to support affirmance. Adams v. Adams, 335 So.2d 174, 177 (Ala.Civ.App.1976), cited with approval in Smith v. Haynes, 364 So.2d 1168 (Ala.1978).

It is apparent that the requisite equality of opportunity is absent from the present circumstances. Trimble’s failure to serve on the appellees a statement of the issues she intended to present on appeal placed the city defendants in a position where they could not intelligently decide whether to accept her designations. Porter v. State Farm Mut Auto. Ins. Co., 347 So.2d 107, 108 n. 2 (Ala.1977). If the transcript was unavailable, the city defendants had no obligation to initiate a statement of the proceedings in lieu of the usual transcript. Adams, supra, 335 So.2d at 177.

Because it is the obligation of the appellant to see that the record on appeal contains evidence sufficient to warrant reversal, Trimble must bear the strict penalty for omission of this vital material.

APPEAL DISMISSED.

TORBERT, C.J., FAULKNER and JONES, JJ., concur.

ADAMS, J., concurs in the result only.


text:
    AMERICAN STATES INSURANCE COMPANY v. Walter BARKER, d/b/a Barker’s Masonry, et al.
    82-288.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Tony S. Hebson of London, Yancey, Clark & Allen, Birmingham, for appellant.
    John W. Sudderth and John S. Somerset, Birmingham, and Frank Ellis, Jr., Colum-biana, and William A. Davis, III and Kelby E. Strickland, Jr., Birmingham, for appel-lees.
   EMBRY, Justice.

This is an appeal from the following judgment:

“This cause came to be heard upon Plaintiff’s complaint for declaratory relief and the answers filed by all Defendants. At the trial of the cause, Plaintiff orally informed the court that it withdrew the aspect of the complaint alleging non-cooperation of Defendant Barker, and no testimony was presented to this Court on that issue. Therefore, the Court finds this issue in favor of the Defendants. Also, the Plaintiff adduced at trial some testimony regarding Defendant Barker’s alleged non-payment of the premium for the policy in question. However, Plaintiff did not allege this as a ground for relief from coverage in the complaint, and orally informed the Court that it did not assert this as a ground for denial of coverage but presented the testimony for other purposes. The Court therefore finds this issue in favor of Defendants.
“The Court has heard testimony and has been presented the depositions of Walter Barker and Beatrice Barker. After having considered all the testimony, depositions, and evidence in this case, the Court is not reasonably satisfied of the allegations of the complaint. Accordingly, all issues in this case are hereby resolved in favor of the Defendants
“Judgment is hereby rendered in favor of the Defendants on all counts of the complaint, and declaratory relief is denied.”

We affirm.

The issue for review is whether the ore tenus evidence supports the judgment which implicitly holds that the insured, Walter Barker, under applicable rules of law, reasonably complied with the following provisions of the American States Insurance Company’s policy covering him:

“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
“(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

The controlling principle of law is: Whether notice of a potential claim is given to the insurer within a reasonable time within the meaning of the policy language “as soon as practicable” depends upon the facts and circumstances of each case; circumstances must be such as to lead reasonable and prudent persons to believe an occurrence may give rise to a claim against him; and, whether delay in giving notice to the insurer of an occurrence signifying a potential claim is unreasonable within the meaning of the policy is a question of fact.

The disputed evidence in this case supports the conclusion that Walter Barker’s version of the facts justified the trial court’s judgment. Barker’s statement of the facts may be summarized as follows:

The incident made the basis of the suit for damages filed against Barker by James Edward Kent occurred on 6 December 1977. A concrete block wall fell on Kent while he and another carpenter were bracing it with lumber. Kent was standing on the ground at the base of the wall; another carpenter was on the opposite side of the wall. There is no testimony as to where that other carpenter was or what he was doing at the time the wall fell. Kent testified that other walls had fallen the night before this incident. Kent further testified the wall that fell on him had been erected at least two (2) months before the accident and he knew of no other persons being injured, but that he did not return to the job after his injury. Barker testified he knew only of one person being injured, but did not know the man’s name. The evidence of record clearly indicates there may well have been other “on the job” injuries, as Kent’s injury was not the incident Barker related to the trial court because Kent was not on a ladder, nor involved with a “green wall,” nor injured by an exterior wall of the building.

Barker testified the wall-falling incident he knew about involved a “green wall” (which was defined by him as one which had been recently put up and the concrete had not dried or set). The only injury he knew about concerned a carpenter who climbed up on a wall on a ladder which fell and injured him. This wall that he learned about he called an exterior wall which he said was the back wall of the building. Kent testified the wall which fell on him was a partition wall between two bathrooms located in the central part of the building. While it is true that Kent had used the term “outside wall” on two earlier occasions, his uncontradicted testimony at trial was that this is a common construction term used to mean a wall not supported at the corners. He also explained this in his pretrial oral deposition. He testified that he had visited the job site recently (before trial), now Riverchase Middle School, and had located the wall that fell on him in the central part of the building. It is totally uncontroverted that the wall which fell onto Kent was not the “rear wall of the building” as Barker testified.

Kent filed suit against Barker in December 1978, sending service by certified mail. The return receipt of that service is signed “Beatrice Barker.” Barker testified that he never received the suit papers. His wife, Beatrice Barker, testified she signed for the papers but just threw them on the television table and never gave them to her husband. Barker ultimately received the summons and complaint in the damage suit and took them to his attorney and began having conversations with the insurer immediately thereafter. Don Broome, insurer’s employee, testified this was in early 1981. The insurer investigated the accident in 1981 and then denied coverage, citing failure of the insured to notify it as the reason.

We hold, after careful review of the evidence, that under that evidence, with the attendant ore terns presumption of correctness, Barker was not put on notice of a potential claim against him until actual receipt by him of the summons and complaint in Kent’s suit for damages.

The judgment below is due to be and is hereby affirmed. See Pinson Truck Equipment Company, Inc. v. Gulf American Fire & Casualty Company, 388 So.2d 955 (Ala.1980).

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Thomas JACKSON v. Rufus L. REED.
    82-372.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      John Joseph Smith, Jr. of Smith & Smith, Birmingham, for appellant.
    Harold T. Ackerman, Birmingham, for appellee.
   FAULKNER, Justice.

The parties are neighbors. The plaintiff, Rufus L. Reed, is approximately 79 years old, has a third- or fourth-grade education and can read and write. The defendant, Thomas Jackson, is approximately 62 years old, has no formal education, and cannot read or write, except that he can sign his name. Reed is retired from Penn Central Railroad and Jackson has been employed at United States Steel for 38 years.

The dispute between these neighbors arises from the need of Reed to borrow money to complete the process of building a house on a vacant lot. In his complaint, Reed charges that Jackson, by fraud and misrepresentation, obtained his signature on a deed conveying to Jackson an interest in the property on which he was building the house. Reed further states that he made a mistake in signing the deed because he thought the instrument he was signing was a mortgage and that the entire transaction essentially was a debt security transaction.

Jackson counters by claiming that Reed thoroughly understands business transactions, understood this transaction, and merely seeks now to get out of what he considers to be a harsh arrangement. The lower court, although this issue was not raised by either of the parties, sua sponte ruled that the business dealings of the parties were so muddled that it was apparent that neither of the parties had sufficient capacity to conduct the business transaction of the nature of the one involved herein and that the purposes of equity would be best served by restoring the parties as nearly as possible to their respective positions before they began to deal together. We believe the trial court’s resolution of this case to be in error and we reverse and remand.

Several issues are raised by the pleadings and evidence in this case, as well as one overriding issue relating to the extent to which a judge may sua sponte frame and decide an issue not raised by the parties in the litigation:

1. Did the trial court err both in determining that the parties did not have the capacity to conduct their business and affairs and, as a consequence of that determination, in ordering the deed and mortgage involved herein cancelled?
a. May a trial judge sua sponte inject an issue such as this in the litigation where the issue is not raised by either of the parties?
2. Should the deed in this case have been cancelled because of failure of consideration?
3. Did the plaintiff, Reed, fail to carry his burden of proof as to misrepresentation or fraud by Jackson? If not, should the court still have set aside the deed and mortgage because of a mistake made by Reed in signing the deed and the mortgage?
4. Inasmuch as this was a debt security transaction, should not the court have construed the deed as essentially what it was, a mortgage?

I.

This litigation presents an anomaly. Plaintiff Reed sought by his complaint to have a deed purportedly signed by him can-celled, but did not wish the mortgage signed by him cancelled because he believed it was truly the essence of the business transaction. On the other hand, the defendant, Jackson, did not wish the deed or the mortgage set aside, claiming that Reed understood the business transaction and now just simply attempts to get another agreement which he believes is more favorable to him. The trial court did what neither party wanted.

The facts in more detail are as follows: Plaintiff and defendant live in the same community. One vacant lot separates their respective homes. In 1971, plaintiff purchased a vacant lot, on which the house he lives in is situated, for $3500.00. Immediately after Reed purchased the lot in 1971, he began acting as his own contractor in the building of the house. Jackson testified that in 1977 or 1978, Reed approached him about borrowing money to complete the house. Jackson testified that Reed said “he had went his limit ... had done all he could do.” Reed testified that he had invested an additional $8,000.00 on the property. At the time of the filing of the complaint, Reed said his property was worth $30,000, although at trial he testified it was worth $60,000.00. Jackson testified at the trial that the property was worth $40,000.00. According to Jackson, Reed could not borrow any money from a bank or savings and loan association because of his age and limited income.

After many conversations, Reed agreed to borrow and Jackson agreed to lend money to be used to finish the house which Reed had been attempting to complete since 1971. Jackson contacted his attorney, Jackson W. Guyton, who was also an officer of a mutual savings credit union, about the best way to handle the transaction. Guyton advised that first he should order a title policy to determine if Reed actually had clear title to the property. However, before the title binder was issued, Reed was anxious to get started on the completion of the house and wanted money immediately. Thereupon, Jackson had his attorney prepare four promissory notes, which Reed signed, and the money was advanced to Reed in accordance with the figures on the notes.

There is no dispute that later on, Reed signed a note and a mortgage in the presence of Guyton in the sum of $10,526.50. This amount of money was obtained by Jackson by making his own loan with the credit union. Prior to the loan closing, Jackson had advanced Reed money from his credit union loan account to pay for construction costs on the house. He did so by check. Guyton totalled the checks drawn on Jackson’s account and found that there was still $2,922.00 owed to Reed to furnish full consideration for the execution of the $10,526.50 mortgage and note. Jackson immediately drew a check in this amount and it was endorsed by Reed. In spite of the inconsistency, Reed states that he never received any money from Jackson, but he admits that he endorsed checks amounting to the full amount of the mortgage signed by him and that he signed the mortgage and note.

Later on, Jackson says that Reed stated he needed even more money to complete his house. Jackson says he told Reed he would not give him any more money unless his name was put on the deed with Reed. Jackson says that Reed agreed and both went to see Jackson’s lawyer, Guyton, who in court testified that he accomplished the intention of the parties by having Reed execute to Reed and Jackson a joint right of survivorship deed which contained a typewritten clause to the effect that in the event Thomas Jackson predeceased Rufus Reed, the mortgage from Rufus Reed to Thomas Jackson would remain in full force and effect. The converse was, namely, if Reed predeceased Jackson, then of course, Jackson would have absolute title to the property and the mortgage to himself would be superfluous. Guyton further testified that the agreement was to the effect that Jackson would pay all insurance premiums and Reed would pay all taxes — of course this presented no obligation on Reed’s part because Reed was a senior citizen and exempt from taxes. Guyton indicated that Jackson was present when the deed and the transaction were explained to Reed and that Reed executed the deed in their presence. Furthermore, Guyton called his secretary to listen to the explanation of the transaction and the secretary testified, in substance, at the trial to the same facts as related by her employer. The amount of money given to Reed for his execution of the deed is alleged to have been $1,000.00. Guyton testified that Reed stated that he had already received this $1,000.00, but Reed denied, as he did with reference to other money, that he had received the $1,000.00, although checks were introduced that would tend to substantiate the payment of this amount.

It was further testified by Guyton that payments on the mortgage were suspended as a result of the execution of the joint right of survivorship deed. However, Reed says that he attempted to make payments to Jackson, which he refused, and that it was then that he asked for whatever records were available on their business transactions. He says that he took those records to the Birmingham Trust National Bank, where he learned for the first time that Jackson had an interest in his property over and above a mortgage.

This case presents a very important question of the propriety of a court’s sua sponte addressing and deciding an issue not framed by the pleadings. As with much of our jurisprudence, there are two views, one which holds that a court should, and another that says it should not. One of the reasons offered in support of the first view is that courts exist in order to mete out substantial justice. If a court determines that injustice would follow if a material issue not raised by the parties is not decided by the court, it is the duty of the court to decide that issue. Opponents of this position argue that to pursue this course of action would itself lead to injustice because the losing party would not have had the opportunity to rebut the argument accepted by the court, which indeed, may have been ill founded. However, it is generally conceded that a court should act sua sponte if a fundamental miscarriage of justice will otherwise ensue, and particularly where the court’s jurisdiction is involved. Fundamental injustice is usually conceived of as relating to litigation of great public concern involving large numbers of people. It is not to be applied, as here, where the issue is not of great public concern, or of any jurisprudential importance.

We are of the opinion that even if the issue of the capacity of the parties had been raised, it has no relevance to the facts in this case. Our long recitation of the facts in this case makes it clear that the parties involved here, although lacking in education in the formal sense, did have the requisite knowledge and comprehension to understand the matters they dealt with. Justice Simpson, in Fortune v. Boutwell, 271 Ala. 592, 595, 126 So.2d 116, 118 (1960), capsulated the law as it existed at the time of his opinion (it has not changed since that time) with reference to capacity to make a conveyance of land. He stated:

“We have stated the governing principle in varying language: Incapacity to understand the business transacted, as distinguished from mere sickness, must be proved in order to avoid a conveyance. Stanfill v. Johnson, 159 Ala. 546, 40 So. 223. A person with sufficient mental ability to comprehend what he is doing and understand the nature of the act and its consequences has capacity to make a deed. Frederic v. Wilkins, 182 Ala. 343, 62 So. 518; Harris v. Bowles, 208 Ala. 545, 94 So. 757; Hall v. Britton, 216 Ala. 265, 113 So. 238. Mere weakness of intellect is not sufficient to incapacitate a grantor and to warrant cancellation of a deed on ground of mental incapacity. McKinney v. Weatherford, 242 Ala. 493, 7 So.2d 259. The law presumes everyone to be sane until the contrary is proved, and it is unsoundness of mind and incapacity to understand the business transacted, in contradistinction to mere weakness, which must be proved in order to avoid a conveyance. Halman v. Bullard, 261 Ala. 115, 73 So.2d 351. Likewise, advanced age or mental enfeeblement is not sufficient to invalidate a conveyance unless the grantor’s mind was so impaired as to render her incapable of acting intelligently and voluntarily in the conveyancing. Lee v. Menefield, 249 Ala. 407, 31 So.2d 581.”

None of the conditions set forth above were met in this case; therefore, even if the doctrine of mental incapacity had been an issue in the case, the court would have been in error in attempting to apply it here.

II.

Because a court can be affirmed if it reaches the right result, although for the wrong reasons, we will proceed to address the other issues properly raised in this case. Appellee argues that the court was right in cancelling the deed because $1,000.00 was grossly inadequate consideration for the transfer of an interest in the property by Reed to Jackson. We respectfully disagree. All other things being proper, a deed cannot be set aside because of inadequate consideration or for no consideration at all. Taylor v. Godsey, 357 So.2d 979 (Ala.1978); Ingram v. Horn, 294 Ala. 353, 317 So.2d 485 (1975). Here, not only was there testimony that Reed received the amount of money stated' in the mortgage, but also testimony that he received an additional $1,000.00 as well and an agreement that he did not have to pay anything on the mortgage unless Jackson predeceased him. Considering the difference in ages, 79 for Reed and 62 for Jackson, this does not appear, on the face of it, to be an unconscionable arrangement. In addition, Jackson was also obligated to keep up the insurance payments on the house. Furthermore, Jackson’s advancement of about $12,000.00 represents over one-third the value of the property, if we take Reed’s estimation of $30,000.00 for the value of the property, as originally stated in his complaint.

III.

Reed’s third contention is that Jackson misrepresented to him that an instrument he was signing was a mortgage when, in fact, it was a deed. There was no finding by the court below on this particular fact. Thus, we are permitted to judge facts unencumbered by any presumption in favor of the trial court. Guyton, a practicing attorney of many years, testified under oath, along with his secretary, that they carefully explained the nature of the transaction to Reed, and that he agreed to sign the deed and did so in their presence. It is not inconceivable that he would have done so, because our view is that the transaction was not to Reed’s great disadvantage but, in fact, may have been to his great advantage. Considering Reed’s denials that he had received any money at all, when the record shows that he had received over $11,-000.00, we are of the opinion that he failed to sustain his burden of proof on the issue of fraud and misrepresentation.

As to Reed’s argument that he made a mistake when he signed the deed, we find the law squarely against him. If a grantor fails to read a deed which conveys realty he did not intend to convey, his mistake will be attributed to his own negligence. Taylor v. Godsey, supra. Reed testified that he could read and write; therefore, he must be held to the consequences of his own act.

IV.

Reed’s contention that the deed he signed should be construed as a mortgage, since the total transaction was a debt security transaction, we believe to have been answered in discussion of issue three. However, viewing the evidence without a presumption of correctness of the trial court’s finding, we are firmly of the opinion that the facts do not justify the application of the principle of law which Reed wishes us to adopt in this case, namely that set out in Andress v. Parish, 239 Ala. 67, 193 So. 727 (1940).

Our view of the evidence is that Reed and Jackson both intended a transaction where an interest over and above the security interest was to be given to Jackson for the additional advancement of $1,000.00 and other consideration. We agree that the original basis for the business arrangement was a loan, but are firmly convinced that it subsequently matured to something else. This something else, although an afterthought, nevertheless met all the legal requisites of a proper conveyance and we so hold.

For the foregoing reasons, the judgment of the trial court is reversed and the cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Rentways, Inc. v. O’Neill Milk and Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271, 274 (1955).

      . Hampton v. Superior Court, 38 Cal.2d 652, 656, 242 P.2d 1, 3 (1952).

      . The Andress principle is as follows:
      “At common law, a deed of conveyance of land absolute and unconditional upon its face, but intended and understood by the parties to be merely a security for the payment of a debt, will be treated in equity as a mortgage, conferring upon the parties the relative rights and remedies of mortgagor and mortgagee, and nothing more. This rule is fully recognized and applied in this jurisdiction. Richardson v. Curlee et al., 229 Ala. 505, 158 So. 189; Hooper v. Reed [211 Ala. 451, 100 So. 875; Fowier v. Haggins], 209 Ala. 176, 95 So. 816; Smith v. Thompson, 203 Ala. 87, 82 So. 101; Lewis v. Davis, 198 Ala. 81, 73 So. 419; Morton v. Allen, 180 Ala. 279, 60 So. 866, L.R.A. 1916B, 11.
      “In Corpus Juris, Vol. 41, Section 64, pp. 310, 311 and 312, the equitable principle invoked in this case is thus stated: “Under the settled doctrine of equity that the form of a transaction will never preclude inquiry into its real nature, but in all cases the intention of the parties must control, irrespective of the form, if a conveyance is made as a security for money in whatever form the conveyance is made, or whatever cover may be used to disguise the transaction and hide its real character from others, as between the parties and as to all persons who have notice that the property is merely held as collateral security, it will be held and treated as a mortgage. Every deed, therefore, whether absolute or conditional on its face, and whether made to a trustee or not, if made for the sole purpose of securing a debt is a mortgage, and can be enforced only as such.”
      “This court has had occasion to apply the above stated equitable doctrine in numerous cases heretofore coming before it. The doctrine is sound and promotive of the ends of justice, which after all is the end and purpose of legal jurisprudence.”

        Andress v. Parish, 239 Ala. at 69, 193 So. at 729.


author: PER CURIAM.

text:
    Dorothy S. McDONALD v. FIRST SAVINGS ASSOCIATION OF WISCONSIN, et al.
    82-392.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Dennis J. Knizley of Alexander and Kniz-ley and Joseph T. Brunson, Mobile, for appellant.*
    James W. Tarlton, III of Hamilton, Butler, Riddick, Tarlton & Allen, Mobile, for appellee First Savings Assoc, of Wisconsin.
    E.J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appel-lee The Aetna Casualty and Surety Co.
   PER CURIAM.

The only issue raised by this appeal is whether or not the trial court abused its discretion in denying Dorothy S. McDonald’s motion to reinstate her original action against First Savings Association of Wisconsin. The pertinent portions of the docket sheet in this case read as follows:

“2/26/82 — Plaintiff [appellant McDonald] having failed to appear in person or by counsel, cause dismissed with prejudice. Cost taxed to plaintiff.
“2/26/82 — Judgment by court in favor of counterelaimant [appellee First Savings Association] and against counterde-fendant [appellant McDonald] with leave to prove damages.
“9/2/82 — Plaintiff’s motion for court to set aside judgment entered [/.e. the judgment on the counterclaim in favor of First Savings Association] and to reinstate her original action in this case.
“10/12/82 — Motion submitted.
“10/15/82 — Motion denied.
“10/19/82 — Defendant, First Savings Association of Wisconsin’s motion for court to dismiss its counterclaim.
“11/2/82 — Motion granted; counterclaim dismissed, costs taxed to the coun-terclaimant.
“12/2/82 — Notice of appeal to Supreme Court filed this date by plaintiff from the order of October 15, 1982, denying plaintiff’s motion to court to set aside judgment entered and to reinstate her original action.”

As the docket sheet shows, appellee’s motion to dismiss its counterclaim was granted by the trial court; therefore, we shall consider the propriety of the trial court’s action denying the motion to reinstate appellant’s original action.

Appellant claims that extraordinary circumstances are demonstrated in this case because there is no evidence that she received notice of the February 26, 1982, hearing and thus she contends that she was denied her right to be heard at that hearing. Appellant states that she appeared in court January 25, 1982, without counsel, and admits that she was directed by the trial court to obtain new counsel to replace her previous counsel. The record indicates, however, that appellant failed to heed the trial court’s instructions and waited more than six months before engaging legal counsel to inquire as to the status of her lawsuit.

Under these facts, appellant has failed to show that the trial court’s refusal to grant relief in this instance amounts to an abuse of discretion. See e.g., Haskew v. Bradford, 370 So.2d 259 (Ala.1979); Pierson v. Pierson, 347 So.2d 985 (Ala.1977); Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979).

AFFIRMED.

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

EMBRY, J., not sitting.


text:
    John TORRES, Jr., and Eunice H. Torres v. STATE FARM FIRE & CASUALTY COMPANY, d/b/a State Farm Insurance Company.
    82-397.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      Robert T. Cunningham, Jr. and Brian P. Philips of Cunningham, Bounds, Yanee, Crowder & Brown, Mobile, for appellants.
    Lucian Gillis, Jr. of Reams, Wood, Vollmer, Philips, Killion & Brooks, Mobile, for appellee.
   FAULKNER, Justice.

This is an appeal from a summary judgment rendered by the Circuit Court of Mobile County in favor of defendant, State Farm Fire and Casualty Company. We affirm.

For several years prior to the incident in question the plaintiffs, John and Eunice Torres, had purchased their homeowner’s and automobile insurance through Clovis Goraum, a State Farm insurance agent. They testified that they relied on Mr. Gor-aum with regard to their insurance needs. On or about September 12, 1979, Mrs. Torres went to Mr. Goraum’s office in connection with an insurance claim related to Hurricane Frederic. She testified in her deposition that “the first words out of my mouth when I went in the door were, ‘The first thing I want to tell you is that we want flood coverage.’ ” According to Mrs. Torres, Elizabeth Hawkins, Mr. Goraum’s employee, replied, “I’ll take care of it.” The Torreses admittedly received insurance policies each year from State Farm, but testified that they were unaware that the policies provided no coverage for flood damages.

No further conversations with regard to flood insurance took place between the Torreses and Mr. Goraum’s office until the plaintiffs suffered flood damage on May 4, 1981. When Mrs. Torres reported the damage to Mr. Goraum, he told her that she did not have coverage.

The Torreses’ complaint against Goraum and State Farm alleged breach of an agreement to secure flood insurance, negligent misrepresentation that flood insurance would be secured, and false misrepresentation that flood insurance would be secured.

State Farm denied that it received any request for flood insurance on behalf of the plaintiffs. It also alleged that it does not sell flood insurance. Such coverage is obtainable only through the National Flood Insurance Program. See 42 U.S.C. § 4001, et seq.

State Farm filed a motion for a summary judgment based on the pleadings, the plaintiffs’ depositions, and an affidavit stating that State Farm does not provide flood coverage. The trial court granted the motion and, after making an express determination that there was no just reason for delay, directed entry of final judgment in favor of State Farm. A.R.Civ.P. 54(b).

A cause of action for misrepresentation exists when the plaintiff relies on a misrepresentation of a material fact and suffers damages as the proximate result of his reliance on the misrepresentation. Section 6-5-101, Code of Alabama. Furthermore, under Alabama law, an insurance company may incur liability as a result of the negligent misrepresentations of its agents. Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110 (Ala.1977).

Because it is the policy of courts not only to discourage fraud but also to discourage negligence and inattention to one’s own interests, the right of reliance comes with a concomitant duty on the part of the plaintiffs to exercise some measure of precaution to safeguard their interests. In order to recover for misrepresentation, the plaintiffs’ reliance must, therefore, have been reasonable under the circumstances. If the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover. Bedwell Lumber Co. v. T & T Corporation, 386 So.2d 413, 415 (Ala.1980).

“If the purchaser blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see, he is willingly deceived, and the maxim applies, ‘volunti non fit injuria ’.”

Munroe v. Pritchett, 16 Ala. 785, 789 (1849).

For purposes of a summary judgment, the facts must, of course, be viewed in a light most favorable to the non-mov-ants. Even so, we are not constrained to overrule the trial court. The conversation in question took place in the wake of a major disaster. The employee who told Mrs. Torres that she would “take care of it” no doubt was inundated with work at that particular time generated by claims like the Torreses’ related to the hurricane. The plaintiffs relied on the statement for over a year and a half, despite the fact that they never received any premium notice for flood coverage and despite the fact that they received a homeowner’s policy each year which did not provide for such coverage. We opine that, under the circumstances, the plaintiffs failed to exercise ordinary diligence in relying for so long on Ms. Hawkins’s statement, when they received nothing from State Farm indicating that flood coverage had gone into effect. The failure to procure flood insurance which would have covered the loss was attributable to the plaintiffs’ carelessness and neglect rather than to the misrepresentation.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    J.W. ROBBINS, Bill R. Moses and Becky W. Moses v. Jack CRAWFORD, Jr., individually and d/b/a Prattville Realty, a sole proprietorship.
    82-498.
    Supreme Court of Alabama.
    Sept. 30, 1983.

      J. Myron Smith and Theron 0. McDowell, Jr., Prattville, for appellants.
    Harold Howell of Howell, Sarto & Howell, Prattville, for appellees.
   ADAMS, Justice.

This is an appeal from a judgment of the Circuit Court of Autauga County awarding the plaintiff, Jack L. Crawford, Jr., $10,-859.00 against defendants J.W. Robbins and Becky W. Moses. Crawford, a real estate broker in Prattville, Alabama, sued the defendants for breach of contract and fraud and bad faith, claiming both compensatory and exemplary damages.

The issues raised on this appeal are as follows:

1. Did the trial court correctly apply the law to the facts in awarding a judgment to Crawford?
2. Did the trial court properly award punitive damages?

We answer the questions favorably to the appellee, and affirm the decision of the trial court.

The facts of this case are as follows:

Crawford was employed by Robbins under a multiple listing service contract, dated August 15, 1981, to locate a buyer for a house owned by Robbins. The initial term of the listing agreement was ninety days, from August 15, 1981, through November 14, 1981, with a sixty-day continuation clause that expired at midnight, January 13, 1982. The continuation clause provided for payment of the 6% commission to Crawford if an agreement to sell the property were negotiated during the continuation period with a person to whom Crawford had “introduced, offered, or submitted” the property during the initial ninety-day listing period.

Becky Moses, having been informed by her husband, Bill Moses, that the Robbins house was for sale, visited the house, saw plaintiff’s sign, and decided to call the plaintiff. After having looked at the house and discussed it with plaintiff’s agent, she signed an offer to purchase the property, dated October 13,1981, for her husband and herself for $122,650.00. The offer specified that “[t]his sale is subject to the sale of Purchaser’s home ... by 12-1-81 with 24-hour 1st right of refusal.”

Robbins accepted the offer to purchase on the same day it was signed. The Moseses had their property listed for sale during the pendency of the contingent sale contract, but were unable to find a purchaser before the December 1st deadline had passed.

During the pendency of the Moses-Robbins contract, Grady Ward, the father of Becky Moses, having been told by her that the Robbins house was for sale, contacted Robbins and negotiated a sale of the property, allegedly with the understanding that he could take possession when Robbins finished a new house then under construction. In addition, Ward gave Robbins a hold-harmless agreement obligating Ward to pay any realtor’s commission found to be due under a listing agreement entered into by Robbins, so that Robbins would net $115,-000.00 on the sale.

On January 15, 1982, the date allegedly selected by Robbins for the closing with Ward, Robbins sold his house to the Moses-es, who claim to have persuaded Ward to allow them to complete the sale in his place. The Moseses claim that they were financially able to undertake the purchase from Robbins only because they had found a buyer for their home the day before the scheduled closing with Ward, and had arranged for the closing for their property earlier that same day.

Robbins asserts that he knew nothing of the Moseses’ intention to purchase under the terms of his contract with Ward until the time of the closing on January 15. In any event, on the 15th of January, Robbins conveyed the property to the Moseses. He required them to enter into a hold-harmless agreement identical to the one that Ward had signed.

Crawford learned of the sale to the Mo-seses, and demanded a commission of 6%. Robbins denied his request. Consequently, Crawford brought this action to recover actual damages in the amount of $7,359.00 and punitive damages in the amount of $100,000.00 for fraud and deceit.

Both the appellants and the appellee rely on this court’s decision in the case of Foote v. Moore, 342 So.2d 906 (Ala.1977). In Foote v. Moore, this court held that the oral charge of the trial court adequately stated the law to be applied where a real estate broker seeks a commission under a contract to procure a purchaser for property. The trial court’s oral charge read in pertinent part:

“A broker who procures a prospect who is ready, willing and able to buy under the terms of the contract during the existence of the contract, is entitled to his commission, although the sale may not have been concluded during the term of the contract. However, the seller is not bound forever by the contract. And unless the broker has procured a purchaser who is ready, willing and able to buy under the terms of the contract and during the existence of the contract, or unless the sellers were guilty of bad faith or guilty of fraud in their subsequent negotiations with the broker’s prospect, the broker would not be able to recover.”

342 So.2d at 909. (Emphasis added.)

The evidence was in considerable conflict as to whether there were any subsequent negotiations directly between Robbins and the Moseses. At one point, Robbins testified that sometime prior to the 15th of January, he had contacted Bill Moses and discussed the closing with him, contrary to his latter assertion that he had not spoken with either of the Moseses after they had informed him that they would be unable to complete the purchase of the property by December 1, 1981, as specified in their contingent sale contract. In addition, Ward testified that he did not receive word of the closing from Robbins directly, but through Becky Moses.

There is also disagreement as to whether the Moseses had found a purchaser for their house, making it financially possible for them to purchase Robbins’s property, prior to the expiration of the continuation period of the multiple listing agreement on January 13, 1982. Becky Moses testified that she and her husband had reached an agreement with the purchasers of their house on the 13th of January. However, Ward testified that his daughter and son-in-law told him sometime after Christmas that they had a buyer who had put up a binder. He further testified that he was sure that it was sometime in January, prior to the scheduled closing.

Though both the buyers and the seller testified that they did not agree to complete the sale transacted on January 15, 1981, prior to that date, in order to defraud Crawford of his commission, we think that it was proper for the trial court to regard such testimony with a jaundiced eye in view of the evidence of the relations of the parties to the sale (including the fact that Robbins now works for Bill Moses), of Bill Moses’s refusal to purchase the property at the price agreed to by his wife, which was approximately equal to the price that he eventually paid plus Crawford’s commission, because he knew that Robbins had been asking a lower price, and the other evidence discussed above. As this court said in the case of Dancy v. Baker, 206 Ala. 236, 240, 89 So. 590, 593 (1921), which also was an action brought by a real estate broker to recover his commission:

Where the evidence is in conflict, or may support an inference of fraud or bad faith, that issue is, of course, to be submitted to the jury.

After a thorough review of the record, we think that the evidence in this case clearly supports»an inference of fraud, and was properly considered by the trier-of-faet, namely, the trial judge. We cannot say that his decision was palpably wrong, or without supporting evidence.

We now turn to a consideration of appellant’s argument that the trial judge’s award of exemplary damages was improper in this case. In light of the evidence considered above, we cannot say that the trial judge was incorrect in concluding that the parties to the sale intended to defraud the broker of his commission by tacitly agreeing to the conveyance during the continuation period, for which a fee would be owed .under the terms of the multiple listing agreement. As such, we think his award of exemplary damages is not improper. See generally, C. Gamble and D. Corley, Alabama Law of Damages, § 36-22 (1982).

Lastly, the appellee argues, in brief, that the trial court’s final order against “the defendants” implicitly vacated the previous dismissal of defendant Bill Moses at the close of plaintiff’s case. We disagree. The “directed verdict” in this non-jury case operates as an adjudication of the merits pursuant to Rule 41(b), A.R.Civ.P. Greene v. Jones, 377 So.2d 947, 949 n. 1 (Ala.1979). Insofar as the appellee has not appealed from the dismissal, we think the final judgment of the trial court must be regarded as applicable only to defendants Becky Moses and J.W. Robbins.

For the foregoing reasons, we affirm the decision of the trial court.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Robert SMITH v. Elbert SAINT.
    Civ. 3333.
    Court of Civil Appeals of Alabama.
    Sept. 29, 1982.
    Rehearing Denied Oct. 20, 1982.

      Jimmy F. Carnes of Carnes & Carnes, Albertville, for appellant.
    Will Beard of Beard & Beard, Gunters-ville, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order setting aside a judgment in default on a third party complaint originally filed in district court.

Appellant Robert Smith was defendant in a suit in district court by John Deere Company for detinue of certain farm equipment. The complaint claimed damages in the amount of $5,000. Smith answered denying the allegations of the complaint and filed a third party complaint against appel-lee Elbert Saint. The complaint alleged that Smith had purchased the farm equipment in question from Saint, and that if John Deere recovered of Smith, Smith would be entitled to recover against Saint for breach of warranty of title. Smith’s complaint was served on Saint on March 16, 1981, and on April 8, 1981, a default was rendered against Saint for failure to appear.

Thereafter the district court entered an order dismissing John Deere’s detinue action against appellant Smith. The undisputed testimony in the case was that the value of the farm equipment was $10,000. Any judgment rendered in a detinue suit against either party must be for the property or its alternate value with damages for its detention to the time of trial. The district court reasoned that if it were to render a judgment for the property’s alternate value ($10,000), it would exceed the court’s $5,000 jurisdictional limit.

John Deere appealed to the circuit court, and the question of jurisdiction was again raised. The circuit court determined that the district court should not have dismissed the case; rather, under § 12-11-9, Code of Alabama 1975, the district court should have transferred the case to the circuit court. The court further ruled that it had the authority to correct the district court in that regard, and transferred the case to itself by its own power.

Following a trial de novo, the circuit court rendered a judgment in favor of John Deere and against Smith on September 1, 1981. On September 16,1981, Smith filed a motion for revision of the judgment on the ground that it failed to dispose of his third party complaint against Saint. On October 2, the court revised its judgment by entering a judgment in favor of Smith against Saint on the third party complaint.

On November 2, 1981, Saint filed a motion to set aside the judgment against him on the ground of meritorious defense. The meritorious defense asserted by Saint was that the verbal agreement between Saint and Smith required Smith to pay John Deere all indebtedness owing upon the equipment.

After carefully reviewing the file in the case, the circuit court found that the third party complaint was filed in district court. Under Rule 14(dc), A.R.Civ.P., third party practice is not available in district court; no new pleading was filed in circuit court. Thus, the circuit court set aside its judgment for Smith against Saint on the ground that it did not have jurisdiction to render it. Smith appeals from this judgment.

The appellant does not raise on appeal the question of whether a circuit court judge has the authority to transfer a case from the district court under his general supervisory power. Rather than answer that question affirmatively by negative implication, this court raises it and finds that the circuit judge does not have that authority.

Section 12-12-10, Code 1975 gives the presiding judge of each circuit “general supervision of the administrative operation of the district courts within the circuit, subject to rules of the supreme court.... ” Section 12-17-24 of the Code gives the presiding judge “general supervision of the judges, clerks, registers, court reporters, bailiffs, sheriffs and other court employees of the circuit and district courts within the circuit. ...” The Supreme Court of Alabama has interpreted § 12-17-24 and defined the circuit judge’s supervisory power in a situation similar to the present case in In re Ingram, 356 So.2d 618 (Ala.1978). In Ingram the Honorable Kenneth F. Ingram, Presiding Judge of the Eighteenth Judicial Circuit, had issued a directive to the clerk of the court requiring that all civil process be delivered to the sheriff for service. Under Rule 4.1(b)(1), A.R.Civ.P., the clerk has the authority and duty to deliver process for service. The clerk’s authority includes the discretion to direct either the sheriff or a constable to serve civil process. Ingram’s directive effectively performed the clerk’s duties for him. The court recognized that § 12-17-24, Code 1975 gives presiding judges the authority to supervise clerks and sheriffs “to see that they attend strictly to the prompt and diligent discharge of their duties.” 356 So.2d at 621. The court then discussed the scope of that supervisory power:

“This statute does not authorize the presiding judge to exercise the duties placed by law upon the clerk. Yet the presiding judge has the duty and responsibility to see that the circuit court functions properly. If a clerk fails to perform his or her duties placed upon him or her by law, mandamus or other proper remedy will lie to compel his action.”

356 So.2d at 621.

We believe the same reasoning applies in the present case. Section 12-17-26 of the Code gives circuit judges the authority to grant writs of mandamus. We hold that mandamus is the proper remedy to compel a district judge to transfer a case that is within the exclusive jurisdiction of the circuit court from district court to circuit court, and that a circuit judge has no authority to transfer such a case himself. The matter was properly before the circuit court for trial de novo by appeal from a judgment of dismissal. Such was a final judgment and appealable. McCulley v. Stroud, 286 Ala. 515, 243 So.2d 28 (1970).

The issue brought forward on this appeal is whether the circuit court had jurisdiction to render judgment on a third party complaint originally brought in district court. Because the complaint was originally filed in district court (where third party practice is unavailable under Rule 14(dc), A.R.Civ. P.), the issue necessarily involves a consideration of the effect of filing a third party complaint in district court. More specifically, we must determine what effect Rule 14(dc), A.R.Civ.P. has on the jurisdiction of the district court.

Appellant contends that Rule 14(dc) is procedural, and that under Rule 82(a), A.R. Civ.P., it is not intended to alter the court’s jurisdiction; that the subject matter jurisdiction of the district court is not affected by Rule 14(dc); that the district court had jurisdiction to hear the third party complaint, and the third party complaint with its default moved' with the original complaint to circuit court; that the circuit court therefore had jurisdiction to render judgment on the third party complaint, and should not have set its judgment thereon aside.

The issue is not whether the district court had jurisdiction of the subject matter of the third party complaint. The issue is whether that court may entertain a procedure which is prohibited to it by the rule-making authority — the supreme court.

True third party practice, as embodied in Rule 14, A.R.Civ.P., did not exist at common law in Alabama. See Rule 14, A.R. Civ.P., Committee Comments. Impleader was made available in Alabama in 1965 by Tit. 7, § 259, Code of Alabama 1958. That act has been superseded by Rule 14.

The district courts of Alabama were created in 1973 by Amendment No. 328, amending art. VI of the Constitution of Alabama of 1901. Third party practice was not made available in the district courts. Rule 14(dc), A.R.Civ.P.

Rule 14 makes available in circuit court what was not available to it at common law, namely, third party practice. That rule does not apply in district court; therefore, third party practice is not available in district court. The filing of a third party complaint in district court is a nullity. The district court has been specifically denied the authority to entertain such a complaint. Rule 14(dc), A.R.Civ.P. Any action taken thereon was beyond the authority of the court and was void.

The case between John Deere Company and Robert Smith was moved to circuit court and was heard de novo with judgment entered. Smith contends that his third party complaint against Saint was as much a part of the “case” as was John Deere Company’s complaint against him, and that it therefore moved to the circuit court. The circuit court therefore obtained jurisdiction to hear both the original complaint and the third party complaint.

We have already answered that contention. However, it may be observed further that the appeal was from a judgment of dismissal in district court to a de novo trial in circuit court. Any judgment of the district court was thereby of no further force or effect. Even should the third party complaint be removed to the circuit court, the default judgment thereon would not be effective there. It was not an ap-pealable judgment. Neither was there notice of such removal to Saint. No matter how the matter is approached, the court was not in error in setting aside its judgment. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.