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(100 So.) served. On September 2, 1922, the petitioners / operated upon the entire board of revenue, amended their petition by alleging that re- and required that all of its members be made spondent had failed to record on the minute parties respondent to the petition. book of the board within 90 days from the Thereupon petitioners amended their peti. adjournment of said meeting of May 9th, as tion by making all the members of the board it was his duty to do, the acts and doings of parties respondent, on August 23, 1923; and the board thereat, and had failed to so re- also by setting up the alleged proceeding of cord the allowance of said claim; and they disallowance; alleging ignorance of its exist. amended the prayer appropriately to require ence until informed of it by respondent's anrespondent to record its allowance in the min. swer denouncing it as void for want of juris. utes, or on the minute hook, of the board. diction, and praying that it be expunged from This amendment was covered by the terms of the records of said board of revenue. the alternative writ, already issued, requiring The alternative writ was thereupon issued respondent to so record.

to the several respondents, and respondents Respondent's answer denied that the rec-Fountain, Carter, and Pearson moved to ords or minutes of the board showed any strike the amendment from the file on the allowance of petitioners' claim as alleged; / grounds, substantially: (1) That it effected a that it had not been passed on or allowed ; complete change of parties respondent; (2) and denied his authority "to register said that it presented an entire change of the claim and issue said warrant."

cause of action; and (3) that it sought to Demurrer being sustained to this answer, bring within the cause for relief a matter of respondent filed several successive answers, record which was not in existence when the setting up in substance the following: That original petition was filed. petitioners' claim was personally presented This motion being overruled, a demurrer to the board by F. W. Hare, one of the peti- was filed to the amended petition, on various tioners, and upon his advice, “and with prac- grounds which are stated in the opinion. tically no consideration and deliberation, the This demurrer being overruled, the three reboard of revenue voted three to one to allow spondents named above answered the writ, said claim; that on the same date, and soon repeating the substance of the former anafter the adjournment of said meeting of the swer; denying that there was any "formal board, respondent was advised by a member employment" of petitioners in the matter of of said board that one of the members of said the bond issue, but admitting that they perboard, who had voted for allowing said claim, formed the services claimed for; asserting had considered the matter, and had reached that after the discussion of the matter of the the conclusion that he had acted too hastily allowance of the claim between the two memin voting for the allowance of said claim, bers of the board and the president, they and desired to change his vote in order that agreed that it was improvident, and “that the the consideration of the claim might be con- proceedings of said board should not be made tinued to a subsequent meeting of the board to show an allowance of said claim, but that in order that a proper investigation might be the matter should be left open for further made by the board as to the reasonableness consideration.” of the claim, and the propriety of allowing The answer admits that demand was made same for the amount claimed"; that under upon Judge Fountain for the doing of the these conditions he did not record the pro- several things in issue, but denies that de ceeding, nor register the claim, nor issue a mand was made on the other members of the warrant therefor; that at a subsequent meet. board, and denies that any demand was ever ing said Hare appeared before the board and made on any of them to expunge the record requested action on the claim, but none was of disallowance (of August 14, 1922) from the taken; “but thereafter, on August 14, 1922, minutes of the board. at a regular meeting of said board, said claim Demurrer was filed to this answer on Ocwas taken up, considered and formally dis- tober 5, 1923, and on the same day respondallowed"; that two members voted for and ents filed their motion to transfer the cause two against allowance, and respondent cast to the equity side of the court. This motion, the deciding vote against it; and this action was overruled, and the demurrer to the an. is set out fully on the minutes of the board swer was sustained. of said meeting.

Respondents declining to plead further, a The answer admits that petitioner de- peremptory writ was issued, with judgment manded of respondent that he do the several tinal for the petitioners. things sought to be compelled by the petition

From this judgment respondents appeal, er, before it was filed.

and assign for error the several rulings and Demurrer was sustained to this answer, judgments recited above. and, respondent declining to plead further, a

Barnett, Bugg & Lee and R. L. Jones, all peremptory writ was issued, and judgment of Monroeville, for appellants. was rendered thereon. Thereupon respond Powell & Hamilton, of Greenville, for ap ent appealed to the Supreme Court, and on pellees. that appeal (210 Ala. 51, 97 South. 59) the judgment and order of the circuit court was SOMERVILLE, J. (1) The question of reversed on the ground that the relief sought I primary importance presented by the record

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in this case is upon the right of the peti-, legal çight to proceed by action at law to the tioners to compel the board of revenue of enforcement of their claim is to beg the quesMonroe county to have entered upon its min. tion entirely; for in that case the wrongful utes--the record proper of its proceedings, refusal to make the records of the board the fact that the claim of petitioners was show the admission formally and irrevocably duly filed and duly allowed by the action of made by the board would compel petitioners a m ity of the board.

to proceed without the advantage of the rec. That the claim was regularly allowed, and ord evidence in support of their claim to a sufficient written memorial made thereof, which they are clearly entitled. In siort, and that the term was terminated by ad- the relief here sought is not merely the en. journment of the board without rescinding forcement of petitioners' claim, but prithat action, are admitted facts as to which marily to enforce their right to record evi. there can be no dispute.

dence showing prima facie its existence and On the former appeal of this case (Foun- validity. tain, Probate Judge, etc., V. State ex rel. [2] The amendment to the petition was llybart et al., 210 Ala. 51, 51, 97 South. 59, properly allowed. It did not work an entire 61), we said:

change of parties. The original petition and “The question at hand is whether in the cir- writ were against Fountain as probate judge, cumstances shown by the record before the cir- and also as ex officio president of the board cuit court mandamus was the proper remedy of revenue. Under the amended petition he for the enforcement of the performance by the remained a party in the same capacities, and probate judge of all or any of the duties just the bringing in of other members of the enumerated. It is conceded that upon the facts board as necessary parties did not change shown by the pleadings the order allowing re- the character or purpose of the proceeding. lators' claim on May 9th should have been spread upon the minutes of the board of rev

[3] Nor did the addition of the averments enue."

and prayer with respect to the expunction

of the void action of disallowance from the There is no question but that it was the records of the board render the petition or duty of the probate judge as president of the writ subject to demurrer or other forin the board-a mandatory duty imposed by of objection upon the theory that the amend. section 3314 of the Code to enter upon the ment must relate back to the filing of the minutes of the board a record of the allow- original petition, and that the right to that ance of petitioners' claim.

particular relief was then nonexistent. The “After the commissioners' court has audited relief by expunction, as sought by the amend. and allowed a claim it has not capacity (at an- ment, was not of the substance of the relief other and later session] to retract. may primarily sought. It was ancillary merely to not recall the admission of indebtedness it has the main relief, and designed to make that made, and deprive the party holding the claim relief more effective and complete, by remov. of the force the law attaches to its audit and ing a conflicting and improper memorial. allowance.”. Commissioners' Court v. Moore, 53 The prayer for expunction might have been Ala. 25.

disregarded entirely, without in any way af. Very clearly, then, petitioners acquired fecting the result. a valuable right by the action of the board In may be noted in passing that these obof revenue in auditing and allowing their jections were made by demurrer to the claim. But “the allowance of a claim must amended petition. The usual practice, it be matter of record. A court of record seems, is to regard the alternative writ as speaks only through its records. A written the first pleading in the cause (Longshore v. memorial is the only evidence which other State ex rel. Turner, 137 Ala. 636, 34 South. courts can receive of its proceedings, wheth- 684; Garrett v. Cobb. 199 Ala. 80, 74 South. er it is of the exercise of judicial power, or 226 ; 26 Cyc. 426; 18 R. C. L. 310); and to of mere ministerial authority and duty." address objections for insuffic ncy to the Speed v. Cocke, 57 Ala. 209.

writ and not to the petition. (State ex rel. Hence there is no escape from the conclu- Dox v. Board, 10 Iowa, 157, 74 Am. Dec. 381: sion that the right acquired by petitioners, Dane v. Derby, 51 Me. 95, 89 Am. Dec. 722 : evidenced as it was by a written memorial of 18 R. C. L. 319. $ 305; Tapping on Mandathe action of the board, sufficient in itself to mus, 362; 26 Cyc. 464, 465). Whether this call into exercise the statutory duty of its practice has been changed by section 4561 recordation-is a clear legal right which of the Code we need not now determine. cannot be nullified and defeated by either [4] The demand made by petitioners on the failure of the probate judge to perform Judge Fountain, as president of the board, his duty, or by the subsequent action of the to do the several things embraced by the board in attempted rescission. The right, writ, was a sufficient demand upon the to be practically effective, must be supported board. It was not necessary to repeat this by formal record evidence; and petitioners demand to every member. 19 A. & E. Ency, have no remedy to make their conceded Law [2d Ed.] 762, citing Chumasero v. right effective except by the mandatory pro Potts, 2 Mont. 255. Moreover, as to those cess here invoked.

matters, as well as to the matter of expune To say that the board's subsequent action tion, it appears with sufficient certainty, we of disallowance gives to petitioners a clear think, that any demand for such action would (100 So.) have been unavailing and useless, in view of

"Power of Attorney. the conduct and proclaimed opinion of the

“Know all men by these presents, that Oliver majority members of the board, evincing az, Cornelius, private in Troop 1, 3d U. S. Cavalsettled purpose not to perform. In such a / ry, late of Blount county, Alabama, has made, case the law does not require a demand. 26 constituted and appointed and by these presCyc. 182, and cases cited in notes 16 and 17. ent's do make, constitute, and appoint, Rufus

[5] Again, as to the recordation of the act H. Cornelius my true and lawful attorney, for of allowance, it being a duty specifically en- me and in my name, place, and stead to claim, joined by law, the authorities hold that de- take possession of any real or personal estate mand for performance, before suit, is not re- belonging to me, and to receive and receipt for

all my interest and share of the estate of the quired. 26 Cyc. 182. [6] The action of the trial court in deny- Blount county, Alabama, hereby vesting my said

late William M. Cornelius, deceased, in said ing the motion of respondents to transfer attorney with the power to receive and receipt the cause to the equity side of the court is for any and all moneys due to me in said counnot reviewable on appeal; however, the ques- ty, to take possession of, sell and convey, make tion may be raised or presented, and the as- and convey title to any real estate, to maintain signment of error in that behalf is without suits and defend suits in law or equity for the merit. Pearson v. City of Birmingham, 210 recovery and possession of same, giving and Ala. 296, 97 South. 916.

granting unto my said attorney full power and We have considered all of the questions authority to do and perform all and every act raised by appellants, and find no error. for to be done in and about the premises, as fully to

and thing whatsoever requisite and necessary reversal.

all intents and purposes as I might or could do The order and judgment of the circuit if personally present at the doing thereof, with court will be affirmed.

full power of substitution or revocation, hereby Affirmed.

ratifying and confirming all that my said attor

ney or his substitute may or shall lawfully do, ANDERSON, C. J., and THOMAS and or cause to be done, by virtue hereof. In witBOULDIN, JJ., concur.

ness whereof I have hereunto set my hand and seal this the 9th day of December, 1911. Oliver Z. Cornelius. [Seal.] The State of Texas,

County of Webb. Before me, John L. DonnelCORNELIUS V. MOORE et al. (6 Div. 162.) ly, a notary public in and for Webb County,

Texas, on this day personally appeared Oliver (Supreme Court of Alabama. May 22, 1924. Z. Cornelius, to be the person whose name is Rehearing Denied June 26, 1924.) subscribed to the foregoing instrument, and

acknowledge to me that he executed the same 1. Principal and agent O10(2)--Execution of for the purpose and considerations therein expower of attorney held binding.

pressed. Given under my hand and seal of ofWhether or not acknowledgment to a power fice this oth day of December, 1911. John L. of attorney substantially met requirements of Donnelly. Notary Publie, Webb County, Texas. statute as to form was immaterial where prin-| [Official Seal].” cipal in fact signed the power, and in any event

Ray & Cooner, of Jasper, for appellant. the signature of acknowledging officer would

Russell & Johnson, of Oneonta, for appelsuffice as to an attestation.

lees. 2. Principal and agent 103(10)- Power of

attorney to brother to sell land held to au. thorize acceptance of part cash and balance in an ejectment suit for the recovery of a

GARDNER, J. This litigation originated in notes.

tract of land in Blount county, brought by Power of attorney to brother to sell land held sufficiently broad to authorize agent to Jane Cornelius, widow of William Cornelius, accept part of purchase price in cash and and her sons, Oliver and Rufus H. Cornelius, balance in notes.

against B. T. Moore and E. B. Ricketts. The

defendants in the ejectment suit had pur3. Infants Cw6–Minor authorized to act as chased the property from the said widow and agent for brother could so act. Independently of a decree made pursuant nelius, but in the body of the deed the name

her sons, the only heirs of said William. Corto Code 1907, $ 4505, removing disability of nonage of one under 21, a minor authorized of Oliver Z. Cornelius did not appear. The by his brother to act for him under a power of defendants in the ejectment suit petitioned attorney could so act.

the court for a removal of the cause to the

equity docket, which was done, and filed this Appeal from Circuit Court, Blount County; bill for a reformation of the deed upon the 0. A. Steele, Judge.

ground that the name of Oliver Z. Cornelius Bill to reform a deed by B. T. Moore and

was omitted from the body of the instrument E. B. Ricketts against 0. Z. Cornelius. De- by inadvertence or mistake of the draftsman. cree for complainants, and respondent ap- z. Cornelius by his brother, Rufus II. Cor

The deed was executed on the part of Oliver peals. Affirmed. See, also, 203 Ala. 237, 94 South. 57.

nelius, acting under power of attorney.

The answer of the respondent Oliver Z. deThe power of attorney executed by 0. z. nies the power of attorney was legally exeCornelius to Rufus H. Cornelius is as fol- cuted, and, further, that Rufus H. Cornelius lows:

was at the time under the age of 21 years,

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and that in any event the power of attorney The power of attorney was sent responddid not authorize the said Rufus H. Cornelius ent not by his brother, Rufus H., but by his to sell his interest in said land except for mother, Jane Cornelius, accompanied by a cash, or to collect the proceeds of the sale letter requesting his signature, and informunless the same were paid in cash to him. ing him of some incumbrance upon the land,

Testimony was taken for the respective the exact nature and amount of such incumparties, and upon submission of the cause brance not being disclosed by the evidence. for final decree the chancellor rendered a The transaction as to the sale of this decree of reformation of the deed as prayed property to these complainants seems to have for in the bill, from which decree the re- been consummated through the respondent's spondent has prosecuted this appeal. mother, Jane Cornelius. A considerable por

(1) It appears without dispute that com- tion of the purchase money appears to have plainant paid for this land the sum of $2,500, been expended in the extinguishment of these $500 of which was cash, and the balance by incumbrances, the remainder being paid to notes secured by a mortgage on the property, respondent's mother, who seems to have giveach of which was subsequently paid. The en some of the funds to her son Rufus H. deed was executed in December, 1912, while the respondent and his brother Rufus H., the respondent Oliver Z. Cornelius, was in his attorney in fact, had no communication the military service of the United States sta- with each other in regard to this transaction, tioned in the state of Texas. Previous to the entire matter being left with the mother. the execution of the deed the said Oliver Z. The complainants received no intimation of had executed a power of attorney to his any claim against the property until the fall þrother, Rufus H. Cornelius, by virtue of of 1919, when the ejectment suit above rewhich power of attorney tbe said Rufus H. ferred to was brought. had signed the name of Oliver 2. to the deed The evidence of the draftsman of the deed executed to these complainants. Whether shows very clearly that the 'respondent's or not the acknowledgment to the power of name was omitted from the body thereof attorney substantially meets the require merely by an oversight, and, so far as this ments of our statute as to form we need not feature of the bill is concerned, the evidence stop to inquire, as the respondent's evidence fully meets the requirements of the rule shows without conflict that be in fact signed as to reformation of written instruments. the power of attorney; and, in any event, The son, Rufus H., evidently knew and unthe signature of the acknowledging officer derstood as to the sale of this land, and this would suffice as to an attestation.

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respondent must have known that a sale of [2] The said Oliver Z. received no part of the land was deemed necessary by the mother the purchase money, and it is strenuously into accomplish the desired purposes, and that sisted that his attorney in fact in the trans- he complied with his mother's request, and action here in question went beyond the for her use and benefit forwarded the power scope of his authority, which was known or of attorney to her in order that she might should have been known to these complain- deal with the matter as she thought wise ants.

and proper. Counsel for appellees argue in response to The power of attorney therefore is to be this insistence that the power given in the construed in the light of the relationship power of attorney is broad and comprehen- existing between the parties, and the facts sive, and that respondent's brother, Rufus H., and circumstances showing the purpose of its acted in the premises as was contemplated by execution. When so considered, we are of the respondent, and all those interested in the opinion that the respondent's brother, the transaction. This was the conclusion Rufus II., acted in the premises as he was reached by the chancellor, and from a review authorized to act by the respondent when he of the record we are persuaded that this (Oliver Z.) forwarded the power of attorney finding is correct.

to his mother. Our conclusion in this reThe power of attorney is to be construed spect is further strengthened by the fact in the light of the surrounding facts and that the respondent for a number of years circumstances, and in view of the purposes to after the execution of the power of attorney be accomplished thereby. Brantley v. Life and a sale of the land seems to have made no Ins. Co., 53 Ala. 554. It is broad and compre- inquiry in regard to his interest in the prohensive, and after giving authority for the ceeds of the sale or made any complaint in sale of the respondent's interest in the estate respect thereto, and during these years the uses the language:

complainants appear to have been in the un"Giving and granting unto my said attorney molested control thereof. full power and authority to do and perform all [3] At the time of the execution of the and every act and thing whatsoever requisite power of attorney it appears that Rufus H. and necessary to be done in and about the Cornelius was under 21 years of age, but his premises as fully to all intents and purposes, as disabilities of nonage had been removed by I might or could do if personally present at the doing thereof, with full power of substitution virtue of the decree of the chancery court. or revocation, hereby ratifying and confirming Section 4505, Code 1907, expressly authorizes all that my said attorney or his substitute may such decree either by the chancery court in or shall lawfully do or cause to be done by vir- term time or the chancellor in vacation, and tue hereof."

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(100 So.) tional averments. It would seem on col er, and of operating a lumber yard and lumber lateral attack, at least, the decree was suffi- planing mill which constituted the plant of the cient; but this is unnecessary to be deter- said Riverside Manufacturing Company, and mined, for Rufus H., although a minor, was

was situated upon the bank of Mobile river at authorized to act as agent for his brother of Mobile, and, that in his said business he was

or near the foot of Madison street, in the city under the power of attorney which was exe- regularly receiving large shipments of lumber cuted. Sims v. Gunter, 201 Ala. 286, 78 by barges docking at the wharf in front of or South. 62; 14 R. C. L. 221.

adjoining his said plant, said barges being towed We are of the opinion the decree of the or brought to said wharf by tugs or other tow chancellor is correct, and will be accordingly | boats. here affirmed.

(3) That the defendant in his said business Affirmed.

was regularly employing more than 16 em

ployees, and that he had elected to become subANDERSON, C. J., and SAYRE and MIL-ject and was subject, in his relation with his LER, JJ., concur.

said employees, to part 2 of the Workmen's Compensation Act of the state of Alabama.

(4) That on, to wit, the said 24th of August,

1922, Fritz R. Havard, the husband of the plainEx parte HAVARD. (1 Div. 290.)

tiff, was regularly in the employ of the defend

ant in the usual course of the defendant's said (Supreme Court of Alabama. Jan. 31, 1924. Rehearing Granted May 29, 1924. Further

business, being employed by the defendant in

that business in the capacity of lumber inspecRehearing Denied June 30, 1924.)

tor and grader, and that the average weekly On Rehearing.

earnings of the said Fritz R. Havard in his said

employment by the defendant were $30 per Admiralty Om21 - Employee held engaged in week, and that the defendant and the said Fritz non maritime service when injured.

R. Havard in their said relation of employer Death of employee, whose employer had and employee were at the time of the death of elected to become subject to Workmen's Com- the latter, as hereinafter set forth, subject to pensation Act, while grading and tallying lum- the provisions of part 2 of the Workmen's ber being unloaded from barge to dock at em- Compensation Act of Alabama. ployer's planing mill, held compensable under

“(5) [This section appears in the opinion of such act, though he was on schooner moored Justice MILLER.] alongside of barge in navigable river when in

(6) That the said Fritz R. Havard at the jured.

time of his death had the following dependents Miller and Thomas, JJ., and Anderson; C. J., in addition to claimant, his widow, who was redissenting.

siding with him as his wife until he died, viz.:

Fritz R. Havard, Jr., aged eight years, and Certiorari to Circuit Court, Mobile Coun. Ralph W. Havard, aged six years, who now ty; Saffold Berney, Judge.

reside with claimant, their mother, and who are Suit by Eva J. Havard against G. M. Ros- the minor children of claimant and the said

Fritz R. Havard, deceased. And she alleges engrant, for compensation under the Work- that she and her said two children were wholmen's Compensation Act for the death of ly dependent upon the said husband and father, Fritz R. Havard, employee of defendant. Fritz R. Havard, at and until the time of his Judgment for defendant, and plaintiff brings injury and death. certiorari. Reversed and remanded.

"(7) That she has given notice of said acciThe amended complaint, excepting section dent to the said employer as required by the

Workmen's Compensation Act of Alabama, and 5, reads as follows:

within the time prescribed by said act, but that "Eva J. Havard files this her complaint the said employer has wholly failed to pay the against G. M. Rosengrant, doing business under compensation provided by the said act, and still the name and style of the Riverside Manufac- refuses to pay. turing Company, under the Workmen's Com "Wherefore, the premises considered, claimpensation Act of the state of Alabama, and re ant shows unto the court that she is entitled to spectfully shows unto the court as follows: receive from the defendant, G. M. Rosengrant,

"(1) That she is the widow of Fritz R. Ha- doing business under the name and style of the vard, deceased, and is a resident of the city and Riverside Manufacturing Company, on behalf county of Mobile, state of Alabama, and resides of herself and her said minor children, the comat and her address is 1083 Spring Hill avenue, pensation provided by part 2 of said Workmen's Mobile, Ala., and that she is over the age of Compensation Act and she therefore prays the 21 years, and that the defendant, G. M. Rosen- said G. M. Rosengrant, doing business under grant, who, at the day of the death of her hus- the name and style of the Riverside Manufacband, as hereinafter set forth, was doing busi- turing Company, be made a party defendant Dess under the name and style of the Riverside to this her complaint, and that this court will Manufacturing Company, is over the age of 21 make an order fixing the time and place for the years, and is a resident of the city and county | hearing of her said complaint, and that the of Mobile, and has his place of business on Mo- said defendant be required to file a verified anbile river at or near the foot of Madison street, swer to this complaint, setting up the facts, in Mobile, Ala.

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if any, upon which it relies in defense hereof; "(2) That on, to wit, August 24, 1922, the de- and she prays that upon the hearing of this fendant, G. M. Rosengrant, was engaged under matter a decree will be entered granting her the name and style of the Riverside Manufae- said compensation and such other and further turing Company, in the business of lumber deal or different decree, order, and relief as she

100 SO.-57

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