Campbell Const. Engineers, Inc. v. Covington, 82-1297

• Decision Date: 31 August 1984
• Docket Number: No. 82-1297,82-1297
• Citation: 460 So.2d 1236
• Parties: CAMPBELL CONSTRUCTION ENGINEERS, INC. v. John E. COVINGTON and Marcia E. Covington.
• Court: Alabama Supreme Court

Page 1236

460 So.2d 1236

CAMPBELL CONSTRUCTION ENGINEERS, INC. v. John E. COVINGTON and Marcia E. Covington.

No. 82-1297.

Supreme Court of Alabama.

Aug. 31, 1984.

Rehearing Denied Nov. 30, 1984.

Alton R. Brown, Jr., E.J. Saad, and Michael S. McGlothren of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.

D. Richard Bounds and John T. Crowder, Jr., of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellees.

ALMON, Justice.

This is an appeal from the denial of a Rule 60(b), A.R.Civ.P., motion to set aside a default judgment. Defendant/appellant Campbell Construction Engineers, Inc. (Campbell), argues that the judgment was void for lack of service of process, that the entry of default was improper, that it did not default intentionally and that it has a meritorious defense. The trial court, after holding an evidentiary hearing and receiving briefs from the attorneys, entered a detailed order denying the motion to set aside the judgment.

The underlying action was a suit by John and Marcia Covington for personal injuries they sustained when their pickup truck was struck by a truck driven by Brannon Weaver in the course of his employment with F.L. Jackson Trucking Company (Jackson Trucking). The Covingtons' original complaint named Weaver and Jackson Trucking as defendants, but they soon filed an amended complaint adding Campbell as a defendant. Campbell had a contract with Scott Paper Company pursuant to which Weaver was transporting waste at the time of the accident. After Campbell did not answer the amended complaint within 30 days, the Covingtons moved for a default judgment. The trial court entered a default judgment against Campbell and made the judgment final, pursuant to Rule 54(b), A.R.Civ.P., while the action remained pending against Weaver and Jackson Trucking.

Campbell insists that it never received service of the amended complaint and summons. The sheriff's return, however, recites that the summons and complaint were served on "Mr. Doan" at Campbell on April 12, 1982. Gene Dorn, the office manager of Campbell at that time, denies having received the summons and complaint and states that he was not authorized to receive service on Campbell. The trial court found that the amended complaint was served on Campbell and stated that it was "not reasonably satisfied from the evidence that the Default entered in this case was the result of excusable neglect, inadvertence or that the service on the Defendant, Campbell Construction Engineers, Inc. was improper."

Rule 60(b) allows a court to relieve a party from judgment for reasons enumerated therein. A party must file a motion raising the reasons numbered (1) through (3) within four months of entry of judgment. The court entered default on July 30, 1982, and Campbell filed its motion to set aside the judgment on January 14, 1983. Campbell asserts that it had no knowledge of the suit or the default judgment until the Covingtons' attorney sent a letter requesting payment of the judgment in December of 1982, more than four months after the entry of judgment.

Campbell cites Code 1975, § 6-9-21, which requires a clerk or register to issue execution within 90 days from entry of judgment, and argues that because this procedure was not followed, it lost the opportunity to file a motion based on Rule 60(b)(1). We agree with the Court of Civil Appeals' holding in Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979), that this code section does not require a judgment holder to execute within ninety days, but merely protects judgment holders from delays by clerks in issuing executions. Under § 6-9-1, a judgment holder can execute at any time within ten years.

Campbell does have an arguable claim for relief under Rule 60(b)(4), which allows relief from a void judgment. Campbell claims that the judgment is void for lack of jurisdiction because Campbell never received service of process. We do not find that the trial court is due to be reversed on this ground, however, because the question of whether Campbell received proper service hinged on disputed facts.

The summons directed to Campbell includes a sheriff's return which recites that it was served on "Mr. Doan" and which is signed "J. Jackson." Deputy Jackson testified that the signature was not his, but that it was ordinary procedure in the sheriff's department for office personnel to sign the sheriff's returns after service was perfected. Deputy Jackson had no independent recollection of serving this summons and complaint, but he testified that he had served summonses and complaints at Campbell's office on numerous occasions. He recognized Gene Dorn in the courtroom as one of the persons on whom he had served papers.

"A strong...