Bolling v. Spiller

• Decision Date: 15 June 1892
• Citation: 96 Ala. 269,11 So. 300
• Parties: BOLLING ET AL. v. SPILLER.
• Court: Alabama Supreme Court

11 So. 300

96 Ala. 269

BOLLING ET AL. v. SPILLER.

Supreme Court of Alabama

June 15, 1892

Appeal from chancery court, Dale county; JOHN A. FOSTER, Chancellor.

Bill by Mary F. Spiller against R. E. Bolling & Son. From a decree granting an injunction, defendants appeal. Affirmed.

The bill in this case sought to have enjoined any further proceedings upon a judgment alleged to have been recovered against the complainant as a member of the partnership of J A. Spiller & Co. It was averred in the bill of complaint that in the year 1888 a judgment was rendered in the circuit court of Dale county against the complainant and her husband, J. A Spiller, as the partnership of J. A. Spiller & Co., and also as individuals composing the partnership; that the execution issued out of said circuit court on said judgment; and was about to be levied upon the property of complainant. The bill further alleges that complainant had no notice of said judgment, or the suit in which the same was obtained, by summons, by complaint, or otherwise, and that she had no knowledge whatever that she was sued in said court by R. E Bolling & Son in any capacity. The complainant further proved that she was not, and never had been, a member of the firm of J. A. Spiller & Co., and had no interest whatever in the said business.

H L. Martin, for appellants.

H. D. Clayton and M. Sollie, for appellee.

WALKER J.

A party against whom a judgment at law has been rendered in a cause in which the service of process, giving jurisdiction of his person, appears on its face to be regular, may obtain relief against it in equity, by averring and proving that in fact he was not notified of the proceedings, and that he had a good and meritorious defense to the action. Dunklin v. Wilson, 64 Ala. 162. The counsel for the appellants does not contend in argument that the presumption in favor of the truth of the sheriff's return showing service upon the appellee of the summons and complaint in the action at law has not been overcome by a preponderance of evidence to the effect that there was, in fact, no such service upon her. The evidence introduced in her behalf to show that she had a good and meritorious defense to the suit, and that she did not learn of the existence of the judgment against her until a few months before the bill was filed, is uncontradicted. The main contention in behalf of the appellants is that the judgment in the action at law was against the partnership of J. A. Spiller & Co. alone, and was not a personal judgment against the appellee, and could not, therefore, prejudice her as an individual. It may be conceded in this case that the bill could not be maintained if the judgment was against the partnership alone, though the appellee was named in the summons as one of the partners. That proposition, however, is not decided, as we are satisfied that the judgment purports to bind the appellee personally. The summons and complaint, which were returned as having been...