
    Mattie L. JOHNSON v. Kirtley W. BROWN.
    82-263.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    
      Robert H. Turner of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellee.
   ALMON, Justice.

This is an appeal by Mattie L. Johnson, one of the defendants in the circuit court, from a final judgment which reformed a deed.

A district judge in the circuit was appointed to sit on the circuit court bench in this case by assignment of the presiding circuit judge. Rule 13, Alabama Rules of Judicial Administration.

Mattie Johnson seeks a reversal of the judgment, contending that 1) the trial court committed error in refusing to grant a jury trial; 2) the judgment is against the great weight of the evidence; and 3) Rule 13, ARJA, is unconstitutional.

On February 15, 1955, Lonnie Jemison purchased from Mr. and Mrs. E.L. Coley approximately 20 acres of realty located in Perry County, Alabama. The deed, which Lonnie duly recorded, described the property as being “N ½ of NW Vt of the SE ¼ of Section 6, Township 20, Range 8 East, containing 20 acres, more or less” (emphasis added). The following year Lonnie conveyed to his wife Mary Ella an undivided ½ interest in the above described property, by a deed which was also duly recorded.

Lonnie died intestate in 1967. At the time of his death, his widow Mary Ella had two children: a daughter, defendant Mattie Johnson, who was admittedly not the natural child of Lonnie, and a son, defendant McArthur Jemison, whose paternity was in dispute. No other heirs or next of kin of Lonnie were known to exist.

On September 26, 1979, Mary Ella executed an affidavit which stated that she and her deceased husband Lonnie had no children together and that she was his sole heir and next of kin. Believing that she had inherited the remaining ½ undivided interest in the realty, Mary Ella then sold the entire 20 acre parcel for $4,800.00 to C.J. Tucker on October 9, 1979. Because of reliance upon incorrect descriptions contained in prior instruments in the chain of title, the warranty deed, which Tucker duly recorded, erroneously described the realty as the “NE ¼” rather than the “NW ¼.” Although Tucker included this erroneous description in a subsequent deed to Mr. and Mrs. William D. Suddeth, he corrected the description to read “NW ¼” in a duly recorded correction deed to the Suddeths. After Mary Ella’s death in 1981, the Sud-deths conveyed the property to the plaintiff, Kirtley W. Brown, on February 19, 1981, incorporating the correct description of the realty in the deed.

On September 2,1981, Brown sued Mattie Johnson, McArthur Jemison, and all unknown and unborn heirs of Mary Ella Jemi-son, seeking reformation of the deed executed by Mary Ella to Tucker.

On October 2, 1981, Mattie Johnson filed an answer, which included a general denial and several affirmative defenses but which did not include a request for a jury trial. McArthur, however, filed a separate answer which requested a jury trial and which alleged that Lonnie was his natural father.

At a pre-trial hearing on January 7, 1982, the trial judge granted Brown’s motion to strike McArthur’s jury demand and ordered that counterclaims be filed by January 14, 1982. When McArthur dilatorily filed a counterclaim on January 21, 1982, which restated a jury trial request, the trial court granted Brown’s motion to dismiss the counterclaim.

The court entered a final judgment on March 8, 1982, which reformed the deed from Mary Ella to Tucker to read “NW ¼” based on a finding of mutual mistake of the parties and on Mary Ella’s status as the sole heir and next of kin of her deceased husband, Lonnie. The motion for a new trial was denied.

In failing to make a timely demand for a jury trial in accordance with Rule 38, A.R.Civ.P., Johnson waived her right to a trial by jury. Forrester v. Putman, 409 So.2d 773 (Ala.1981). She, therefore, may not assert error in the lower court’s refusal to grant a jury trial.

[2] Moreover, she cannot complain of any error which affected the non-appealing party, McArthur Jemison, who timely requested a jury trial below. Otts v. Gray, 287 Ala. 685, 255 So.2d 26 (1971) (plaintiff cannot assert error adverse to third party plaintiff where plaintiff never asserted claim against third party defendant and third party plaintiff dismissed appeal); Coastal States Life Ins. Co. v. Gass, 278 Ala. 656, 180 So.2d 255 (1965) (respondent cannot appeal error affecting non-appealing co-respondent).

Additionally, a party is not entitled to a jury in an action for reformation of an instrument. Holloway v. Nationwide Mut. Ins. Co., 376 So.2d 690 (Ala.1979).

Johnson’s assertion that the verdict is against the great weight of the evidence must likewise be limited to errors affecting Johnson only. Coastal States Life Ins. Co., supra, 278 Ala. at 661, 180 So.2d at 259.

After a detailed review of the record, we conclude that there was sufficient evidence to support the trial judge’s finding that the description in the 1979 deed was erroneous and did not express the true intent of the parties. Roach v. Hinds, 292 Ala. 641, 299 So.2d 246 (1974).

Because of the presumptions militating in favor of the trial judge’s decree when the case has been presented ore tenus and without a jury, we will not disturb the lower court’s judgment granting reformation. Baughn v. Lott, 291 Ala. 113, 278 So.2d 698 (1973).

Lastly, Johnson seeks to contest the constitutionality of Rule 13 of the Alabama Rules of Judicial Administration, which authorizes a presiding circuit judge to temporarily assign a circuit or district judge to serve in either a circuit or district court within the circuit. This alleged error was not preserved for review, because Johnson failed to object before the close of the trial to the trial judge’s hearing the case. Kimball v. Penney, 117 Ala. 245, 22 So. 899 (1897).

Even if Johnson had properly raised the Rule 13 issue, this Court has recently held that Rule 13 does not violate the constitutional provision vesting this assignment authority in the Chief Justice. State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala.1977).

The judgment of the circuit court is therefore affirmed.

AFFIRMED.

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

MADDOX, BEATTY and ADAMS, JJ., dissent, with opinion by ADAMS, J.

ADAMS, Justice,

dissenting.

I respectfully dissent. I dissent because Rule 13, A.R.J.A., is unconstitutional. The Alabama Constitution, § 149, places the power of assignment of trial judges for temporary service in the Chief Justice of the Supreme Court. Although the Supreme Court has been given rule making power, that power cannot supersede the Constitution of the State of Alabama.

Because the authority for the appointment of Judge Burke in this case is found in the state’s Constitution, his improper appointment goes to the very jurisdiction of the court to hear and try this case. Being jurisdictional, it cannot be made the subject of waiver. I recognize that 46 Am.Jur.2d Judges, § 260 (1969) states:

Generally, it has been held that objections to the appointment or authority of a special or substitute judge may be waived, either expressly, or by proceeding in the cause before him without objecting. Under this view, a party who agrees to have his case tried by or before a particular special or substitute judge waives his right to object to that judge. Ordinarily, the objection must be made at or before the trial. If not made in the trial court, it will generally be regarded as waived. Thus, most of the cases hold that it is too late to object after trial, by motion in arrest of judgment or similar motion.

However, that section also states:

The lack of jurisdiction of one assigned to hold court in another district, to determine new questions arising on subsequent proceedings in causes submitted to him in such district, after his return to his own district, cannot be waived.

And 46 Am.Jur.2d Judges § 261 (1969) states:

[I]f the record affirmatively shows that the judge deciding the case was neither a de jure nor a de facto officer, a litigant adversely affected may object for the first time upon appeal. A challenge on constitutional grounds to the authority of a substitute trial judge may be raised for the first time on appeal.

Here, the record affirmatively shows that Judge Burke was neither a de jure nor a de facto officer and, accordingly, should not have sat for the trial of this case, as his mere presence nullified the proceedings in this case.

MADDpOX and BEATTY, JJ., concur. 
      
      . A full development of the reasons why Rule 13 is unconstitutional can be found in Justice Beatty’s dissent in State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala.1977).
     