opposite presumption in Alabama

2001“The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interests of his or her child.” 530 U.S. at 69 , 120 S.Ct. 2054 .

2001“The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interests of his or her child.” 530 U.S. at 69 , 120 S.Ct. 2054 .

1984Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 ; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647 .

1984Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 ; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647 .

1984Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed.2d 80 ; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647 .

1974Conley v. Gibson, 355 U.S. 41 , 78 S.Ct. 99 , 2 L.Ed. 2d 80 ; Marshall v. Sawyer, 9 Cir., 301 F.2d 639, 647 .

2023See ClimaStor IV, L.L.C. v. Marshall Constr., L.L.C., 4 So. 3d 452, 457-58 (Ala. 2008); U.S. Pipe & Foundry Co. v. Curren, 779 So. 2d 1171 (Ala. 2000) (holding that, by asserting a right to arbitration in its answer, the defendant preserved its right, which it later sought to enforce by filing a motion to compel arbitration).

2011See Shutte v. Thompson, 15 Wall. 151, 159 , 21 L.Ed. 123 (1873) (‘A party may waive any provision, either of a contract or of a statute, intended for his benefit’); Peretz v. United States, 501 U.S. 923, 936 , 111 S.Ct. 2661, 2669 , 115 L.Ed.2d 808 (1991) (‘The most basic rights of criminal defendants are ... subject to waiver’).

2011See Shutte v. Thompson, 15 Wall. 151, 159 , 21 L.Ed. 123 (1873) (‘A party may waive any provision, either of a contract or of a statute, intended for his benefit’); Peretz v. United States, 501 U.S. 923, 936 , 111 S.Ct. 2661, 2669 , 115 L.Ed.2d 808 (1991) (‘The most basic rights of criminal defendants are ... subject to waiver’).

2011For instance, in United States v. Mezzanatto, 513 U.S. 196 , 115 S.Ct. 797 , 130 L.Ed.2d 697 (1995), the United States Supreme Court, in holding that a criminal defendant had waived the protections of Rule 11(e)(6), Fed.R.Crim.P. (now Rule 11(f)), 8 recognized that a criminal defendant could waive beneficial provisions of federal statutes, procedural and evidentiary rules, and even fundamental constitutional protections: “Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption.

2011For instance, in United States v. Mezzanatto, 513 U.S. 196 , 115 S.Ct. 797 , 130 L.Ed.2d 697 (1995), the United States Supreme Court, in holding that a criminal defendant had waived the protections of Rule 11(e)(6), Fed.R.Crim.P. (now Rule 11(f)), 8 recognized that a criminal defendant could waive beneficial provisions of federal statutes, procedural and evidentiary rules, and even fundamental constitutional protections: “Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered to the opposite presumption.

2007Id. at 945 , 115 S.Ct. 1920 .

2007Id. at 945 , 115 S.Ct. 1920 .

1994Allie v. Ionata, 503 So.2d 1237 (Fla.1987) (approving Cherney v. Moody, 413 So.2d 866 (Fla.Dist.Ct.App.1982)).

1994Allie v. Ionata, 503 So.2d 1237 (Fla.1987) (approving Cherney v. Moody, 413 So.2d 866 (Fla.Dist.Ct.App.1982)).

1940“Where, by the law of the .state where rendered, the decree is not subject to modification at the discretion of the court as to installments which are already due, then the judgment as to such installments is final and must be given full faith and credit in another state. * * * “As to installments not yet accrued, the opposite rule applies; that is, they are not entitled to the protection of the full faith and' credit clause because in such case no money is yet due and as to such installments the decree is generally understood to be subject, upon proof of changed circumstances, to modification

1940In the state of Florida (Van Loon v. Van Loon, 132 Fla. 535 , 182 So. 205 ), as in mis State (Epps v. Epps, 218 Ala. 667 , 120 So. 150 ; Worthington v. Worthington, 224 Ala. 237 , 139 So. 334 ), past due installments under a final decree, which remain unpaid, constitute vested property rights, and are to be protected as such.

1940In the state of Florida (Van Loon v. Van Loon, 132 Fla. 535 , 182 So. 205 ), as in mis State (Epps v. Epps, 218 Ala. 667 , 120 So. 150 ; Worthington v. Worthington, 224 Ala. 237 , 139 So. 334 ), past due installments under a final decree, which remain unpaid, constitute vested property rights, and are to be protected as such.

1940“Where, by the law of the .state where rendered, the decree is not subject to modification at the discretion of the court as to installments which are already due, then the judgment as to such installments is final and must be given full faith and credit in another state. * * * “As to installments not yet accrued, the opposite rule applies; that is, they are not entitled to the protection of the full faith and' credit clause because in such case no money is yet due and as to such installments the decree is generally understood to be subject, upon proof of changed circumstances, to modification

1940In the state of Florida (Van Loon v. Van Loon, 132 Fla. 535 , 182 So. 205 ), as in mis State (Epps v. Epps, 218 Ala. 667 , 120 So. 150 ; Worthington v. Worthington, 224 Ala. 237 , 139 So. 334 ), past due installments under a final decree, which remain unpaid, constitute vested property rights, and are to be protected as such.

1940In the state of Florida (Van Loon v. Van Loon, 132 Fla. 535 , 182 So. 205 ), as in mis State (Epps v. Epps, 218 Ala. 667 , 120 So. 150 ; Worthington v. Worthington, 224 Ala. 237 , 139 So. 334 ), past due installments under a final decree, which remain unpaid, constitute vested property rights, and are to be protected as such.

1940In the state of Florida (Van Loon v. Van Loon, 132 Fla. 535 , 182 So. 205 ), as in mis State (Epps v. Epps, 218 Ala. 667 , 120 So. 150 ; Worthington v. Worthington, 224 Ala. 237 , 139 So. 334 ), past due installments under a final decree, which remain unpaid, constitute vested property rights, and are to be protected as such.

1940In the state of Florida (Van Loon v. Van Loon, 132 Fla. 535 , 182 So. 205 ), as in mis State (Epps v. Epps, 218 Ala. 667 , 120 So. 150 ; Worthington v. Worthington, 224 Ala. 237 , 139 So. 334 ), past due installments under a final decree, which remain unpaid, constitute vested property rights, and are to be protected as such.

1940“Where, by the law of the .state where rendered, the decree is not subject to modification at the discretion of the court as to installments which are already due, then the judgment as to such installments is final and must be given full faith and credit in another state. * * * “As to installments not yet accrued, the opposite rule applies; that is, they are not entitled to the protection of the full faith and' credit clause because in such case no money is yet due and as to such installments the decree is generally understood to be subject, upon proof of changed circumstances, to modification

1939It is well understood that that provision in an act "reverses the presumption of inseparability — [that is] that the legislature intended the act to be effective as an entirety or not at all. [But thereby it] has established the opposite presumption of divisibility." Electric Bond Share Co. v. Securities Exchange Comm., 303 U.S. 419 (3), 58 S.Ct. 678 , 683 , 82 L.Ed. 936 , 115 A.L.R. 105 .

1939It is well understood that that provision in an act "reverses the presumption of inseparability — [that is] that the legislature intended the act to be effective as an entirety or not at all. [But thereby it] has established the opposite presumption of divisibility." Electric Bond Share Co. v. Securities Exchange Comm., 303 U.S. 419 (3), 58 S.Ct. 678 , 683 , 82 L.Ed. 936 , 115 A.L.R. 105 .

1888In Stein v. Bowman, 13 Pet. 209 , an action at law, it was said the opposite rule “would hold out to parties a strong temptation to perjury, and we think it is not sustained either by principle or authority.” “It would,” said Mr. Justice McLean, “lead to perjuries, and the most injurious consequences in the administration of justice.” “The exclusion,” says Mr. Justice Nelson, in Bridges v. Armour, 5 How. 91 , “is placed on the ground of public policy, which forbids a party from being a witness in his own cause,” • • • ‘the opposite rule “holding out to litigants temptations to perjury, and to

1888In Stein v. Bowman, 13 Pet. 209 , an action at law, it was said the opposite rule “would hold out to parties a strong temptation to perjury, and we think it is not sustained either by principle or authority.” “It would,” said Mr. Justice McLean, “lead to perjuries, and the most injurious consequences in the administration of justice.” “The exclusion,” says Mr. Justice Nelson, in Bridges v. Armour, 5 How. 91 , “is placed on the ground of public policy, which forbids a party from being a witness in his own cause,” • • • ‘the opposite rule “holding out to litigants temptations to perjury, and to

1888In Stein v. Bowman, 13 Pet. 209 , an action at law, it was said the opposite rule “would hold out to parties a strong temptation to perjury, and we think it is not sustained either by principle or authority.” “It would,” said Mr. Justice McLean, “lead to perjuries, and the most injurious consequences in the administration of justice.” “The exclusion,” says Mr. Justice Nelson, in Bridges v. Armour, 5 How. 91 , “is placed on the ground of public policy, which forbids a party from being a witness in his own cause,” • • • ‘the opposite rule “holding out to litigants temptations to perjury, and to

1888So, there are other adjudications holding to the opposite doctrine. —State v. Nash, 86 N. C. 650 ; 41 Amer.

1885Our predecessors considered this subject in Langdon v. Brumby, 7 Ala. 53 , and adhered to the principle which we have above announced ; and it has not since been departed from in any subsequent decision.

1880To take tbe debt in question out of the operation of the statute, it would require in the will words creating a specific charge, on an express trust.” The opposite doctrine, announced in the 12th head-note of Darrington v. Borland, 3 Por. 10, is not in harmony with the cases above cited, or that of Carrington & Co. v. Manning’s Heirs, 13 Ala. 611 ; and that case, to this extent, is overruled.

1880The following authorities hold the opposite doctrine, but none of them attempt to show how the value of such claim could be ascertained and liquidated. —Tobias v. Rogers, 3 Ker. 59; Reitz v. People, 72 Ill. 435 ; Jones v. State, 28 Ark. 119 ; Choate v. Quinichett, 12 Heisk. 427 .

1880The following authorities hold the opposite doctrine, but none of them attempt to show how the value of such claim could be ascertained and liquidated. —Tobias v. Rogers, 3 Ker. 59; Reitz v. People, 72 Ill. 435 ; Jones v. State, 28 Ark. 119 ; Choate v. Quinichett, 12 Heisk. 427 .

1854North Carolina and Tennessee, hold the opposite doctrine. — Troup v. Smith, 20 John. 33 ; Callis v. Waddy, 2 Munf. 511 ; Miles v. Barry, 1 Hill’s S. C. 296; Hamilton v. Smith, 3 Mur. 115 ; York v. Bright, 4 Hump. 312.