Carey v. Burrell

285 So. 2d 715, 291 Ala. 629, 1973 Ala. LEXIS 1162
CourtSupreme Court of Alabama
DecidedSeptember 27, 1973
DocketSC 193
StatusPublished
Cited by1 cases

This text of 285 So. 2d 715 (Carey v. Burrell) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carey v. Burrell, 285 So. 2d 715, 291 Ala. 629, 1973 Ala. LEXIS 1162 (Ala. 1973).

Opinions

McCALL, Justice.

The appellee, who is a former coal miner, filed his bill of complaint in the equity court against the trustees of the United Mine Workers of America Welfare and [632]*632Retirement Fund hereafter called the Fund. This Fund was authorized in the coal industry by Section 302(c) of the Labor Management Relations Act of 1947 (29 U.S.C. § 141 et seq.) and was created by the subsequent collective bargaining agreement known as The National Bituminous Coal Wage Agreement of 1950. Under the provisions of the latter agreement, signatory coal mine operators paid certain sums of money into the Fund, computed monthly on the number of tons of coal mined. One of the purposes the Fund is to pay pension benefits on retirement of eligible employees. Resolution No. 63 of the Trustees of the Fund fixed eligibility requirements and regulations governing the payment of pensions to employees of employers signatory to The National Bituminous Coal Wage Agreement of 1950, as amended.

An averment in his bill is that the appellee is entitled to be declared a beneficiary under the Fund, but that the respondent trustees arbitrarily and capriciously denied him a pension without valid or legal basis. In his prayer for relief the appellee prayed that a final decree be entered establishing his right to a pension at the rate of $150 per month for his life, with back payment. He also prayed for such other and different relief as to which he may be entitled.

In his opening oral statement, among other things, the appellee’s solicitor said that, in the alternative, if the court should decide against granting the appellee a pension with back award, the appellee seeks an order directing the trustees to refund with interest all of the monies which he had paid into the Fund as an operator. The bill does not however contain any statement of facts upon which this alternative claim is founded. Nor does the prayer claim specific relief in such alternative, though general relief is prayed for. After an answer in which the appellant trustees denied all of the allegations of the bill relating to the appellee’s being entitled to a pension, the suit was heard in open court, without the introduction of any oral testimony and submitted for final decree on the bill and answer and certain written joint exhibits, as well as an exhibit for the appellee.

In its decree of August 31, 1972, the court found and held first that the appellee was a coal operator and not entitled to the pension benefits under the retirement plan. The appellee has not cross-appealed or cross-assigned error on account of this ruling, so that part of this decree is not before us for review and revision.

The court further found as follows:

“Under principles of equity, and the general prayer for relief, Complainant is entitled to the refund of monies paid into the Fund by him (but without interest thereon). The payment by Complainant of these funds was through a lack of understanding of his rights to benefits from the said Fund and the Fund should not be enriched thereby.”

The court ordered a reference before the Register to ascertain the total sum of money which the appellee had paid into the Pension Fund and reserved jurisdiction of the cause to thereafter enter a judgment for a sum certain against the trustees of the Fund. The costs were taxed against the appellee with execution to issue upon direction of the court. On October 5, 1972, the court awarded the appellee a money judgment against the appellants for $54,665.20, being the amount paid into the Fund by the appellee and stipulated to by the parties, and, the court taxed the costs against the appellants with execution to issue.

After the overruling and denying of their application for rehearing, the appellants appealed from the above decrees rendered on August 31, 1972, and October 5, 1972, by filing security for cost as well as a bond to supersede the moneyed judgment.

The appellee has assailed the sufficiency of appellant’s assignments of error and the manner of joining them for argument. He [633]*633asserts that the appellants have failed to comply with the requirements of Rule 1 of the Revised Rules of Practice in the Supreme Court, Code of Alabama, Recompiled 1958, Tit. 7, Appendix, Cum. Pocket Part, which reads as follows:

“In assigning errors, it shall be sufficient to state concisely, in writing, in what the error consists; and each assignment shall list the page or pages of the transcript of the record on which the ruling is recorded. * * * ”

There ar.e eight numbered assignments of error, made by the appellants on the record. Assignments 1, 2 and 3 are general and to the effect that the court erred in its decrees of August 31, 1972, and of October 5, 1972, respectively, and, in decreeing and entering a judgment for the appellee.

Both of the decrees are several in their nature and are not unit decrees. The decree of August 31, 1972, finds and rules that the appellee is a coal operator and not an employee entitled to benefits from the Fund. It also finds that under equity principles he is entitled to a refund of the money he paid into the Fund, because the payment was through his lack of understanding of his rights to benefits from the Fund, and the Fund should not be enriched thereby. The decree also orders a reference to form a basis for a money judgment to be later entered for the appellee. While the preceding decree grants relief to the appellee-complainant in one ruling only, it at the same time denies the appellee relief in an entirely different ruling. There are two separate rulings in this decree. The order or decree of October 5, 1972, grants the appellee’s motion to strike a motion of the appellants to set aside the submission and to supplement the record. It also orders confirmation of the Register’s report as to the sum the appellee paid to the Fund, and the decree awards a judgment for $54,665.20 to the appellee. Each one of these assignments complains generally of the entry of the respective decrees, though there were several rulings made in each of them. While these three assignments may otherwise be lacking in precision under the requirements of Supreme Court Rule 1, see Burroughs v. Booth, 286 Ala. 110, 112, 237 So.2d 496, they, not being addressed to so-called unit decrees, do not fall within the exception of the cases of Auto-Owners Ins. Co. v. Stokes, 284 Ala. 537, 546, 226 So.2d 320; Powell v. Powell, 285 Ala. 230, 233, 231 So.2d 103, and Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So.2d 814, and therefore must fail. In the case of J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 449, 212 So.2d 831, 837, the court said:

“These assignments complain of two decrees and are that ‘The trial Court erred in rendering its decree of’ a certain date, respectively. Each decree contains more than one ruling. Neither assignment specifies the particular ruling which is assigned as error. Where there are several rulings, to any one of which the language of the assignment might equally apply, the assignment manifestly fails to designate the precise error to be reviewed. If the assignment is uncertain and indefinite as to the particular error complained of, this court will decline to consider it. Beasley-Bennett Electric Co. v. Gulf Coast Chapter, 273 Ala. 32, 35, 36, 134 So.2d 427. * * * ”

Assignments 1, 2, and 3 therefore are not sufficient to invite the court’s attention and will not be reconsidered.

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Wilbanks v. Hartselle Hospital, Inc.
312 So. 2d 29 (Court of Civil Appeals of Alabama, 1975)

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Bluebook (online)
285 So. 2d 715, 291 Ala. 629, 1973 Ala. LEXIS 1162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carey-v-burrell-ala-1973.