Brown v. Brown
| Decision Date | 02 May 1979 |
| Citation | 374 So.2d 332 |
| Parties | Eddie BROWN, Sr. v. Sandra BROWN. Civ. 1659. |
| Court | Alabama Court of Civil Appeals |
I. Drayton Pruitt, Jr., Livingston, for appellant.
William H. Kennedy, Tuscaloosa, for appellee.
This is an appeal from a denial of a motion to set aside a default judgment.
The dispositive issue is whether the trial court erred in refusing to set aside the default judgment. We hold it did not and affirm.
The record reveals the following: The plaintiff-wife petitioned the Circuit Court of Tuscaloosa County for relief with respect to a prior decree of divorce.
The plaintiff filed with the trial court certain interrogatories to be answered by defendant and a request for the production of documents. The defendant failed to produce the documents or answer these interrogatories. Plaintiff then moved for a default judgment. The record indicates that plaintiff served this motion on defendant by mailing a copy thereof to his last known address.
Upon defendant's failure to appear at the hearing on the motion for default, the trial court entered a default judgment against defendant. Thereafter, the defendant timely moved, pursuant to Rule 55(c) ARCP, to set the judgment aside. This motion was bottomed on the premise that defendant was not properly served.
Additionally, the record reveals that at the hearing to set aside the default, defendant's single contention was that service of plaintiff's motion for default was not perfected and thus the judgment was improperly entered. Specifically, the defendant contended that notice of the motion was mailed to an address other than his mailing address.
In this regard, the trial court heard testimony that the defendant obtained a post office box to serve as a mailing address. However, defendant testified that he had received all other papers concerning the proceeding at Route 1, Box 196, Eutaw, Alabama, the residence of a relative.
There is further testimony in the record which shows that the notice in question was sent to the Eutaw address and that the defendant in fact received it. This fact is further evidenced by defendant's actions, I e., he sought legal counsel prior to the hearing on the motion. Based upon these facts and others, the trial judge refused to grant defendant's motion. Defendant appeals.
At the outset we observe that although defendant raises several matters which are asserted as grounds for reversal, these matters are not appropriate for our review. As set forth above, the single issue considered by the trial court was whether defendant was effectively served with notice of the motion for default. Our review in this case is limited to that issue alone because issues not raised below may not be considered for the first time on appeal. Henderson v. Moore-Handley, Inc., Ala.Civ.App., 349 So.2d 1165, Cert. denied, 349 So.2d 1170 (1977).
The requirements for effective service of all papers required to be served in a proceeding (other than the original complaint) are set forth in Rule 5 ARCP. That rule provides that service may be made upon a party by mailing papers to his last known address, and such service is complete upon mailing. Rule 5(b) ARCP. See also Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 308 F.Supp. 489 (S.N.Y.1969).
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