Eidson v. McDaniel
| Decision Date | 20 October 1927 |
| Docket Number | 7 Div. 763 |
| Citation | 114 So. 204,216 Ala. 610 |
| Parties | EIDSON v. McDANIEL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.
Action on promissory note by S.W. Eidson, as executrix of the will of A.M. Eidson, deceased, against W.S. McDaniel. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
H.T Bailey, of Columbiana, for appellant.
Wolfes & Crawford and Isbell & Scott, all of Ft. Payne, for appellee.
The sheriff's return showed service by leaving a copy of summons and complaint with defendant on January 2, 1926. Pleas were filed with demand for trial by jury on February 10th.
On February 12th, defendant filed his motion to transfer the cause to the jury docket. The ground of the motion was that defendant was not served in person, but that a copy of the summons and complaint was left at his home in his absence and no knowledge thereof came to him until within 30 days before filing his demand for a jury trial.
Upon the oral testimony of defendant to the facts averred therein the motion was granted and jury trial awarded. This ruling is assigned as error.
On the face of the return, the right of defendant to a jury trial was waived by failure to file his demand in writing within 30 days after service. Code, §§ 8595, 8597.
In cases involving the validity of judgments, the return by a proper officer becomes a part of the record. In collateral proceedings, it imports absolute verity as other judicial records. By direct proceedings, such as a bill in equity, the return may be impeached upon clear averments and proof of want of service, and the existence of a valid defense. This to the end that a party have his day in court, that a party without fault be not concluded by a record which does not speak the truth.
But strong presumptions are indulged in favor of official returns that the verity of solemn judgments be not imperiled upon uncertain grounds. Accordingly, it is a general rule that the return will not be overturned upon the uncorroborated statement of the party denying service, especially after the lapse of considerable time. King v. Dent, 208 Ala. 78, 93 So. 823; Dunklin v. Wilson, 64 Ala. 162.
While the cause is in fieri, the court has the power and is charged with the duty of affording the litigant a trial in due form of law. To this end it may supervise the doings of its officers, and prevent abuse of its process.
This power contributes to justice, and to that respect for the sanctity of judicial proceedings which sound policy requires.
The motion here involved was presented while the cause was in progress, within a few weeks after the alleged erroneous return. It set forth the circumstantial details. If true, the officer pursued a mode of service allowable in serving a subpoena upon a witness (Code, § 7736), but invalid as a service of summons with copy of complaint upon a defendant to bring him into court. Code, § 9419; Burt v. Fraser, 157 Ala. 574, 47 So. 572.
No effort was made to show time and place of service by handing a copy to defendant, nor that the officer whose action was questioned was unavailable.
No arbitrary rule can be laid down as to the probative force of positive evidence of a party given orally before the trial judge on such motion. A presumption must be indulged in favor of his finding in such case. We decline to reverse his decision upon the ground of insufficiency of evidence in support of the motion.
The suit is upon a promissory note by the executrix of the estate of the payee against the maker. The cause was tried upon special pleas A and B, which appear in the report of the case.
The demurrers, addressed to other pleas, and reassigned to pleas A and B, were for the most part inapt. Grounds of demurrer in any wise appropriate to these pleas were too general.
The pleas are not vague or indefinite, but expressly aver a satisfaction of the debt or a release of the debtor by an instrument in writing set out in full in the pleas. If this rather nondescript document did not have the effect alleged in the pleas, special demurrers should have pointed out wherein it was insufficient.
No error can be predicated upon the overruling of the demurrers assigned.
Issue being joined on these pleas, without further pleading, the sole issue was narrowed to the inquiry...
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