King v. Smith

• Decision Date: 16 March 1972
• Citation: 288 Ala. 215,259 So.2d 244
• Parties: Ruben K. KING et al. v. Frances SMITH. 8 Div 454.
• Court: Alabama Supreme Court

Page 244

259 So.2d 244

288 Ala. 215

Ruben K. KING et al. v. Frances SMITH.

8 Div 454.

Supreme Court of Alabama.

March 16, 1972.

Mary Lee Stapp, Montgomery, for appellants.

W. H. Rogers, Moulton, for appellee.

LAWSON, Justice.

This appeal from a judgment entered by the Circuit Court of Lawrence County was submitted here on motion and on merits.

Motion

Appellee has moved that appellants' brief be stricken because it fails to comply with Supreme Court Rule 8 in two respects and for the reason that it contains 'purported affidavits of various persons' which were not in evidence.

Supreme Court Rule 8, which relates to 'Forms and Length of Briefs,' provides in part: 'Typewritten briefs shall be on white paper, eight and one-half inches by eleven inches, with a margin one and one-half inches, and typewritten on one side of the paper only.' Appellants' brief is typewritten on only one side of white paper of the correct dimensions, but the margins on the pages of the brief are not of the width as provided in the part of Rule 8, Supra, which we quoted above. We will not, however, strike the brief because it fails to comply with the rule because of the incorrect width of the margins. We reaffirm what was said in Southern Guaranty Ins. Co. v. Jones, 279 Ala. 577, 583, 188 So.2d 537, 542: '. . . We are not disposed to strike any brief because the marginal width of the pages of briefs do not conform exactly with Rule 8.'

Supreme Court Rule 8 contains the further provisions:

'Unless authorized by order of this court, the length of appellant's brief shall not exceed fifty pages, not counting cover, index, list of authorities other than authorities listed under 'Propositions of Law,' or a condensed recital in narrative form of the evidence given by each witness where insufficiency of the evidence to sustain the verdict or finding is assigned. . . .'

Within the covers of appellants' brief are more than fifty pages, but the excess is due primarily to the fact that at the end of the brief several affidavits and other immaterial documents have been affixed. Despite this additional failure to conform to the provisions of Rule 8, Supra, we do not feel justified in striking appellants' brief in this case wherein a matter of public interest is involved because of a more or less innocuous failure to comply with the provisions of Supreme Court Rule 8. If we struck appellants' brief the appeal would have to be dismissed. See Edmondson v. Edmondson, 281 Ala. 191, 200 So.2d 652, where the appeal was dismissed because of a total failure to comply with Supreme Court Rule 8. We do not have such a total failure here. Cf. Thompson Tractor Co. v. Cobb, 283 Ala. 100, 214 So.2d 558, where we distinguished Edmondson.

As referred to above, 'purported affidavits of various persons' and other documents not shown by the record to have been before the trial court were affixed to the brief and in the text of the brief references are made to such material. But we will not strike the brief because of the presence of such documents. We will ignore them. This court has said over and over again that it is bound by the record and cannot consider statements in brief which are not supported by the record. A few of our cases so holding are cited: Central of Ga. Ry. Co. v. Ashley, 159 Ala. 145, 48 So. 981; Nelson v. Hammonds, 173 Ala. 14, 55 So. 301; Ward v. Torian, 216 Ala. 288, 112 So. 815; J. L. Davis, Inc. v. Christopher, 219 Ala. 346, 122 So. 406; MacMahon v. City of Mobile, 253 Ala. 436, 44 So.2d 570; Grace v. Birmingham Trust & Sav. Co., 257 Ala. 507, 59 So.2d 595; Parsons v. Parsons, 284 Ala. 105, 222 So.2d 360; Coleman v. Estes, 281 Ala. 234, 201 So.2d 391; McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35. In Cash v. Usrey, 278 Ala. 313, 315, 178 So.2d 91, 93, it was said: 'If appellant feels that the record is inaccurate or incomplete he may seek amendments or corrections by appropriate proceedings, but such cannot be accomplished by statements made in brief on appeal. . . .' We observed in Cooper Transfer Co. v. Alabama Public Service Commission, 271 Ala. 673, 677, 127 So.2d 632, 636, as follows: 'Appellee has attached to its brief four exhibits purporting to show the relative location of the plan and the highway. These exhibits are not in the record and cannot be considered. . . .'

Appellee's motion to strike appellants' brief is denied, but we will consider only those parts of that brief which are properly incorporated therein.

Merits

The Lawrence County Board of Pensions and Security appointed Miss Frances Smith to be the Director of that county's Department of Pensions and Security. She possessed the requirements prescribed by the State Personnel Department as evidenced by the fact that her name was on the register of residents of Lawrence County found to be eligible for the appointment.

The Attorney General in an opinion prepared by Chief Assistant Attorney General Walter Turner, which opinion we think is well-reasoned and grounded on apt statutory provisions, advised the Chairman of the Lawrence County Board of Pensions and Security that the Board's appointment of Miss Smith was valid. Implicit in that opinion is the view that Miss Smith was entitled to be paid a salary, although her appointment had not received the approval of the State Department of Pensions and Security.

The Honorable Ruben K. King, Commissioner of the State Department of Pensions and Security, did not recognize the appointment of Miss Smith because it was not concurred in by the State Department of Pensions and Security. Commissioner King appointed Mrs. Lazelle Henderson as acting Director of the Lawrence County Department of Pensions and Security.

The refusal of Commissioner King to recognize Miss Smith's appointment and his action in appointing Mrs. Henderson precipitated the filing by Miss Smith in the Circuit Court of Lawrence County of a petition for a writ of mandamus to be issued against Commissioner King and Mrs. Henderson commanding Commissioner King to withdraw the appointment of Mrs. Henderson and to recognize Miss Smith as the Director of the Lawrence County Department of Pensions and Security and ordering Mrs. Henderson to vacate the Director's office located in the Lawrence County Courthouse Annex.

An alternative writ of mandamus was issued against the defendants, King and Henderson, as prayed in the petition.

The defendants each filed a separate plea in abatement and 'a defendant' filed a demurrer.

There was no ruling on the pleas in abatement or on the demurrer. The defendant King filed a 'return and answer,' to which Miss Smith filed a replication wherein she joined issue 'on each separate and several denial of material facts in defendant's answer contained, and denies each separate and several allegation of new matter contained therein.'

No testimony was taken. The cause was submitted 'on the pleadings filed by the plaintiff and the defendants and the stipulations also filed, in writing, by the plaintiff and defendants, . . .'

The 'Stipulations' read as follows:

'The parties hereby mutually submit the pleadings and the following stipulations in this cause to the Court:

'(1) Miss Frances Smith has met the requirements of the State Personnel Merit System provisions for County Welfare Director II.

'(2) Pursuant to an attorney general's opinion the State Personnel Department sent the local register to the Lawrence County Board of Pensions and Security. Said Board duly appointed Miss Frances Smith County Welfare Director II for Lawrence County, Alabama. Said County Board has performed all acts it can to effectuate said appointment.

'(3) The defendant, King, does not recognize the appointment of Miss Frances Smith in the absence of concurrence in said appointment by the State Department of Pensions and Security.'

The trial court, after setting out in its 'decree' certain findings of fact, 'Ordered, Adjudged and Decreed' in substance as follows:

(1) That Miss Frances Smith was duly and legally appointed Director of the Lawrence County Department of Pensions and Security by the Board of Pensions and Security of that county on August 15, 1971, and that she is entitled to be paid a salary from the date of her appointment on, to wit, August 15, 1971.

(2) That any person presently occupying that office as a representative of Commissioner King vacate that office and 'turn all duties and responsibilities of said office over to the plaintiff (Miss Smith) . . .'

(3) That Commissioner King or his representative take steps necessary to see that Miss Smith's name is placed on the pay roll from the effective date of her appointment.

From the 'decree' which we will treat as a judgment ordering the issuance of a peremptory writ of mandamus, Commissioner King and Mrs. Henderson appealed to this court.

We do not reach the question of venue. If averments in a complaint show that it is filed in the wrong venue, a demurrer on that ground is proper practice.--Ex parte Morton, 261 Ala. 581, 75 So.2d 500. If the venue defect is not apparent from the face of the complaint, then the question of venue is a defense in abatement.--Ballard v. First Nat. Bank of Birmingham, 261 Ala. 594, 75 So.2d 484. In this case the venue question was raised both by demurrer and by plea in abatement but, as we have observed above, there was no ruling on either pleading. Consequently, there is nothing for this court to review in regard to the venue question.--Meador-Pasley Co. v. Owen, 222 Ala. 392, 133 So. 35; McCrae v. Alexander City, 285 Ala. 444, 233 So.2d 229; Simmons v. Chesnut, 265 Ala. 256, 90 So.2d 767.

In passing upon the petition for mandamus, the return or answer of respondent, unless controverted, is to be taken as true.--Ex parte Adams, 216 Ala. 353, 113 So. 513.

As previously shown, the petitioner or relator, Miss Smith, did join issue by filing the replication set out above. But the mere joining of issue of fact on the return or answer does not destroy the...