Allison v. Helms (Ex parte Allison)
Decision Date | 12 May 2017 |
Docket Number | 2160512 |
Citation | 238 So.3d 1260 |
Parties | EX PARTE Kevin Dwayne ALLISON, Jr. (In re: Kevin Dwayne Allison, Jr. v. Christy Michelle Helms) |
Court | Alabama Court of Civil Appeals |
Kevin Dwayne Allison, Jr., pro se.
Submitted on mandamus petition only.
This is the second time that Kevin Dwayne Allison, Jr. ("the husband"), has appeared before this court to challenge an order of the Marshall Circuit Court ("the trial court") in the husband's divorce action against Christy Michelle Helms ("the wife"). See Allison v. Helms, 230 So.3d 404 (Ala. Civ. App. 2017). In Allison, the husband appealed a September 19, 2016, order of the trial court that stated:
230 So.3d at 404. The husband had construed the order to be an order dismissing his divorce action. Id. However, we determined that the trial court's September 19, 2016, order denying the husband a "final order of divorce" had not dismissed the action but instead had indicated that the action was not ripe for the entry of a judgment, "because the wife had not filed a signed answer and waiver and because the required 30–day waiting period had not expired." 230 So.3d at 405 ( ). We dismissed the husband's appeal, stating in our concluding paragraph that "[t]he husband's divorce action remains pending in the trial court, and the action shall proceed to judgment once service on the wife is perfected." 230 So.3d at 406.
On or about March 16, 2017, the husband filed in the trial court a motion to compel service of the divorce complaint on the wife. The trial court denied the husband's motion on March 20, 2017. On April 3, 2017, the husband timely filed this petition for the writ of mandamus seeking review of the trial court's March 20, 2017, order. We called for an answer to the petition, but none was filed. Thus, we take the averments of fact in the husband's petition as true. See Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002).
Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006).
Rule 4(a)(1), Ala. R. Civ. P., provides that, after a complaint is filed, "the clerk shall forthwith issue the required summons or other process for service upon each defendant." The issuance of a summons is a ministerial duty of the clerk. Lucas v. Belcher, 20 Ala.App. 507, 509, 103 So. 909, 911 (1925) ( ). Furthermore, our supreme court has indicated that the failure of the clerk to promptly issue a summons is neglect. Horn v. Pope, 205 Ala. 127, 129, 87 So. 161, 163 (1920) ( ).
We noted in Allison that the record did not reflect that the wife had been served with the divorce complaint. 230 So.3d at 405–06. The husband avers that the divorce complaint has still not been served on the wife, and the attachments to the husband's petition demonstrate that the trial court has now denied his request that the circuit clerk proceed with service of process on the wife. Nothing in the record in the previous appeal revealed a basis for the failure of the clerk to serve the divorce complaint on the wife.1
The husband has demonstrated a clear legal right to have his divorce complaint served on the wife. We therefore grant the husband's petition, and we order the trial court to instruct the clerk to serve the divorce complaint on the wife.
PETITION GRANTED; WRIT ISSUED.
The record shows that Kevin Dwayne Allison, Jr., submitted a summons and complaint to the trial-court clerk to commence a civil action and requested service upon Christy Michelle Helms, the defendant, by certified mail. "When the plaintiff has requested the clerk to issue service by certified mail, the plaintiff, at the request of the clerk, shall also furnish properly completed postal forms necessary for such...
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