Ex parte Smith

• Decision Date: 19 January 1953
• Docket Number: 1 Div. 517
• Citation: 62 So.2d 792,258 Ala. 319
• Parties: Ex parte SMITH.
• Court: Alabama Supreme Court

Page 792

62 So.2d 792

258 Ala. 319

Ex parte SMITH.

1 Div. 517.

Supreme Court of Alabama.

Jan. 19, 1953.

Alexander Foreman, Jr., and Jos. M. Hocklander, Mobile, for petitioner.

Sam M. Johnston, Chas. B. Arendall, Jr., Johnston, McCall & Johnston and Smith, Hand, Arendall & Bedsole, Mobile, for respondent.

FOSTER, Justice.

This is an original petition for mandamus to this Court to require the judge of the Circuit Court of Mobile County to set aside a judgment which he made on June 6, 1952, in which there is contained the following: 'It is ordered and adjudged by the court that defendant's motion filed May 15, 1952, to grant a new trial be and the same is hereby granted because of insufficient service'.

The motion to which that judgment referred was to set aside a judgment by default, and the verdict of the jury thereon, rendered by the court on May 9, 1952. The grounds set up in the motion to set aside the judgment by default may be grouped without referring specifically to the numbered paragraphs. The first group bases the claim of right on the ground that the summons and complaint were not served on the defendant in point of fact, assuming that the record shows due service. The next group of objections raises the point that the record shows on its face that service was not had on the defendant so as to justify a personal judgment against him. To those grounds, upon which the motion was predicated, there is added a showing that the defendant had a good and meritorious defense to the cause of action. Upon a hearing of that motion, it was made to appear without conflict that there was in fact no actual service upon the defendant who was a non-resident of Alabama and resided in the State of Mississippi, but had knowledge of the suit before the judgment was rendered and had consulted a lawyer.

With respect to that claim of the defendant, it may be observed that although the record does not show in fact in actual service on the defendant, we will consider whether or not it may be sufficient to show a constructive service under section 199, Title 7, Code.

Addressing ourselves first to the contention thus made by the defendant, as set up in his motion to set aside the default judgment and the proof submitted as to it, there are certain principles of law which have application. It is to be noted that the action of the court in setting aside the default judgment was made and entered within thirty days after the rendition of said judgment. When that is the situation, the court has the power, in the exercise of its judicial discretion, to do so and its judgment in that respect will not be reviewed by an appellate court except where it is abused. That principle and a discussion of what constitutes an abuse of discretion has been often considered by this Court. We refer in that connection to ex parte State ex rel. Atlas Auto Finance Co., 251 Ala. 665, 38 So.2d 560, and Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163(8), 36 So.2d 513; Ex parte Anderson, 242 Ala. 31, 4 So.2d 420; McDavid v. United Mercantile Agencies, 248 Ala. 297, 27 So.2d 499. It is only where the order of the judge doing so clearly has no reasonable basis on which to stand that we should annul his act in setting aside the default judgment. The court is presumed not to have abused its discretion. Ex parte Jones, 246 Ala. 433, 20 So.2d 859.

A well settled principle is that the court in which a judgment by default was rendered has the duty (not a discretion) to set aside that judgment on motion made within the thirty-day period when it is proven to the satisfaction of the court that service was not had on the defendant, even though the record shows that service was had, and it must be shown on the further hearing of that motion that he had a good and meritorious defense.

After the lapse of the thirty-day period, now constituting the term within the meaning of our old cases, the trial court cannot alter or vacate the judgment on motion of either of the parties on account of the failure to serve process when the record shows that the process was duly served, except under the four-months statute or by a bill in equity. Section 279, Title 7, Code; Ex parte Brickell, Judge, 204 Ala. 441, 86 So. 1; Ex parte Bergeron, 238 Ala. 665, 193 So. 113. When the face of the record is sufficient to show jurisdiction of the defendant, and the thirty-day period is passed, and the four-months statute is used (section 279, supra), it is necessary for the movant to acquit himself of negligence or fault in the matter complained of. The same is true when a court of equity is sought to be made available. Dunklin v. Wilson, 64 Ala. 162; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Prudential Casualty Co. v. Kerr, 202 Ala. 259(8), 80 So. 97; Gray v. Handy, 204 Ala. 559, 86 So. 548; Kirkland v. C. D. Franke & Co., 207 Ala. 377, 92 So. 472; Craft v. Hirsh, 227 Ala. 257, 149 So. 683.

But when a motion is made within the thirty-day period, and it is satisfactorily proven that service was not had as shown by the return, the court does not have jurisdiction to render a judgment by default, although he may have had some personal knowledge of its existence. 15 Corpus Juris 799, notes 69 and 70; 21 C.J.S., Courts, § 83, pp. 123, 124; 42 Am.Jur. 8, notes 18, 19 and 20; Rosenberg v. Bricken, 302 Ky. 124, 194 S.W.2d 60, 164 A.L.R. 525; Piggly-Wiggly Georgia Co. v. May Investing Corp., 189 Ga. 477, 6 S.E.2d 579, 126 A.L.R. 1465.

The evidence shows that on March 1, 1952, defendant had information of the fact that a suit had been filed against him and a co-defendant. On that day and on March 4, 1952, he consulted a lawyer with respect to it, but did not engage his services. He stated to the lawyer that he had not been served, but that his co-defendant had been. The evidence also sufficiently shows that the registered letter was not in fact offered to the defendant, and that he was not given notice that there was such a registered letter for him, and further that he did not refuse or decline to receive it.

We do not have a situation where the defendant is controverting a return made by a sworn officer that he made service on defendant, requiring a high degree of proof to disprove. Dunklin v. Wilson, 64 Ala. 162; Eidson v. McDaniel, 216 Ala. 610, 114 So. 204. Defendant does not controvert anything certified by the secretary of state as done by her. The only thing he contradicts is an implication from the word 'refused,' and asserts that he did not in fact refuse it. No one has certified that he refused it. No one has certified that it was offered to him or that he had notice of it. The mail carrier and postmistress did not certify or testify as to those facts, and no one has so testified or certified. The above stated rule is not so strict under those circumstances. The evidence shows without conflict that the defendant did not receive service of the summons and complaint, as required by section 199, supra: even though we may assume that the face of the record is sufficient to show such service. The evidence satisfactorily shows that the defendant was entitled to have the judgment by default set aside because of the failure to give him notice of the suit in the manner provided by law.

There is also evidence that on March 5, 1952, defendant was critically injured in an accident and was confined in a Mobile infirmary for two weeks. On March 18, 1952, he left the hospital and returned to his home in Mississippi, where he was in bed and unable to perform any work for a long time, and was advised by a physician not to do any work for eight weeks. During that time, on May 9, 1952 the judgment by default was rendered against him.

But it does not appear that the trial judge set aside the judgment in the exercise of a discretion, for he based it solely on the insufficiency of service. An exercise of his discretionary power is therefore not under review. We could not say whether it was abused when it was not used, though it might have been. But when the trial judge set aside the judgment for insufficient service, he could have meant either that the service as shown by the record did not in fact occur, or that its recitals of service do not show a compliance with the law. Although we think the judgment setting aside the default judgment could be supported because defendant was not in fact served, we will also consider the second group set out in the motion to set aside the judgment. That is, that the record shows on its face an insufficient service to confer on the court jurisdiction of the person of defendant, although the court is one of general jurisdiction. As to such a court, 'It is only where the face of the record shows a want of jurisdiction will its proceedings be declared void on collateral attack.' Blount County Bank v. Barnes, 218 Ala. 230, 232, 118 So. 460, 462; a fortiori, it would under such circumstances be declared void on direct attack.

Defendant was a non-resident, as we have shown, and the motor vehicle belonging to him was involved in an accident in Alabama, in which the plaintiff was injured. If the defendant was operating the car, or if an agent or servant of his was doing so in the line and scope of his authority as alleged in the complaint, that statute (section 199, supra) would apply for the purpose of getting service upon the defendant in a suit in this State. In order for such service to be sufficient under the provisions of that statute there are certain steps necessary: (1) service of a process shall be made by the sheriff leaving three copies of it with the secretary of state, together with a fee of three dollars; (2) forthwith the secretary of state shall send by registered mail to the defendant a copy of the summons and complaint with a demand for a return receipt, and shall make a certificate which...