Ex parte Wilson Lumber Co., Inc.

• Decision Date: 05 February 1982
• Citation: 410 So.2d 407
• Parties: Ex parte WILSON LUMBER COMPANY, INC., a Corporation. (Re: Randolph E. NEAL, Jr. v. WILSON LUMBER COMPANY, INC.) 80-584.
• Court: Alabama Supreme Court

Page 407

410 So.2d 407

Ex parte WILSON LUMBER COMPANY, INC., a Corporation (Re: Randolph E. NEAL, Jr. v. WILSON LUMBER COMPANY, INC.)

80-584.

Supreme Court of Alabama.

Feb. 5, 1982.

Currun C. Humphrey of Humphrey & Smith, Huntsville, for petitioner.

Randolph E. Neal, Jr., pro se.

George W. Royer, Jr. of Butler & Potter, Huntsville, for amici curiae Ben Hayes and Kathlene Hayes.

Thomas G. Keith, Huntsville, for amicus curiae John D. Tarver.

ADAMS, Justice.

We granted a writ of certiorari to the Court of Civil Appeals to review its decision holding that it is unnecessary to allege and prove a meritorious defense when one seeks relief from a default judgment which is the result of alleged ineffective service. Randolph E. Neal, Jr., (Neal), was sued by Wilson Lumber Company, Inc. (Wilson), in a small claims action filed in the District Court of Madison County. In district court, Neal failed to appear, and after a default judgment was entered against him, he filed a motion seeking relief on the ground of ineffective service, but did not allege a meritorious defense. Neal's motion was denied. Neal appealed to circuit court, which also ruled against him. The Court of Civil Appeals considered Neal's pro se motion to have been filed pursuant to Rule 60(b)(4), Alabama Rules of Civil Procedure, which authorizes relief from void judgments. Holding that Neal did not have to allege and prove a meritorious defense, the Court of Civil Appeals reversed the adverse judgment rendered against Neal by the Circuit Court for Madison County, and remanded the case for an evidentiary hearing on Neal's motion.

Wilson petitioned for certiorari, contending that because Neal failed to allege a meritorious defense in his motion to vacate the default judgment, his motion was denied properly and that the decision of the Court of Civil Appeals, therefore, is erroneous. The facts pertinent to this appeal are set forth in the decision of the Court of Civil Appeals at (1981) 410 So.2d 404.

The following issue is dispositive of this appeal: Is a defendant who files a motion pursuant to Rule 60(b), A.R.C.P., seeking to set aside a default judgment due to lack of proper service of process, required to allege and prove a prima facie meritorious defense in addition to proving lack of service of process? We hold that the Court of Civil Appeals reached the correct result in its decision, but for reasons discussed hereinafter, we clarify the rule of law on this issue.

Citing Raine v. First Western Bank, 362 So.2d 846 (Ala.1978), and Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975), the Court of Civil Appeals held that one seeking relief from a void judgment need not plead or prove a meritorious defense. Under the authority of Raine v. First Western Bank, the Court of Civil Appeals decided that a judgment obtained without proper process is void. Wilson contends, and cites numerous cases (infra), holding that a meritorious defense must be alleged and proved by one seeking relief from a default judgment allegedly void for want of proper service. Wilson maintains that because Neal's motion to vacate the judgment failed to allege a meritorious defense, it was denied properly and the judgment received by Wilson against Neal should stand. Both Wilson and the amici curiae have presented thorough and well reasoned briefs which reach opposite conclusions. The disparity undoubtedly is caused by the fact that previous law addressing the instant problem is marked by confusion and some inconsistency.

The starting point for our inquiry is Rule 60, A.R.C.P., which is "an amalgamation of all prior Alabama procedural devices available to attack final judgments." Modernage Homes v. Wooldridge, 55 Ala.App. at 71, 313 So.2d at 192-3. "Rule 60(b) retains the substance of (prior methods of attack), but destroys the artificial boundaries between them." Committee Comments to Rule 60, A.R.C.P. Rule 60(b)(4) notes specifically that relief may be sought where "the judgment is void." The Committee Comments note further:

If it has been possible to attack a judgment by any of the devices listed above, it will be possible to attack the judgment by a motion or an independent proceeding under this rule, since the rule enumerates all the grounds now available in Alabama for relief from a judgment, and, in addition specifically preserves relief by "independent action" as it now exists.

Committee Comments to Rule 60, A.R.C.P.

Regarding the present case, we agree with the reasoning of the amici curiae that it was unnecessary for Neal to have alleged a meritorious defense in his motion to vacate the default judgment for want of proper service. A judgment obtained with ineffective service is void for the purpose of Rule 60(b)(4). AAA Sewing Machine Company v. Shelby Finance Company, 384 So.2d 126 (Ala.Civ.App.1980). "To authorize a court to proceed, it must acquire jurisdiction over defendant in some mode authorized by law, by service or other means, and ... a judgment rendered without acquiring such jurisdiction is a nullity." 21 C.J.S. Courts § 83 at 123-4 (1940) (footnote omitted), quoted in Cooper v. Watts, 280 Ala. 236 at 240, 191 So.2d 519 at 522 (1966). Neal's attack upon the default judgment entered against him, therefore, appropriately was brought under Rule 60(b)(4).

Wilson argues that it was incumbent upon Neal to allege a meritorious defense in his motion to vacate the default judgment. Wilson cites a number of cases holding that both at law and in equity, one who attacks a final judgment must allege and prove a meritorious defense: Vestavia Country Club v. Armstrong, 271 Ala. 294, 123 So.2d 130 (1960); Ex parte Guin, 264 Ala. 268, 87 So.2d 30 (1956); Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973). The point of law that a meritorious defense is necessary both at law and in equity to set aside a judgment is based upon the operation of the "four months statute."

While a court of equity, or a law court acting under the four months statute-Section 9521-will set aside a judgment rendered without proper service against a party to the suit, yet to secure such relief the aggrieved party must both allege and prove that he has a meritorious defense, and that he was prevented by surprise, accident, mistake or fraud, without fault on his part, from interposing such meritorious defense to the action. He is required to allege and prove a meritorious defense for the reason that it would be idle and useless to set aside a judgment, when, so far as it is made to appear, the judgment rendered was correct, and on another trial a like judgment would be rendered.

Vestavia Country Club v. Armstrong, 271 Ala. at 297, 123 So.2d at 133 (citations omitted); Cockrell v. World's Finest Chocolate Company, 349 So.2d 1117 (Ala.1977) (citing Vestavia Country Club v. Armstrong); Ex parte New Home Sewing Machine Co., 238 Ala. 159, 189 So. 874 (1939).

This court has observed that a proceeding under the "four months statute" is a separate proceeding from the one in which judgment was rendered.

A petition or application for rehearing under the four months statute is not a proceeding in the case wherein the judgment was rendered, but is a new suit, authorized by the statutes to be instituted in the law court, partaking of the nature of a bill in equity seeking relief from a judgment as a result of surprise, accident, mistake or fraud, without fault on the part of the party invoking the court's jurisdiction, and presents a juristic controversy to be determined according to right and justice leaving no room for the exercise of discretion.

Marshall County v. Critches, 245 Ala. 357 at 358-9, 17 So.2d 540 at 541-2 (1944); Ex parte Covington Land Company, 42 Ala.App. 635, 175 So.2d 106 (1965). The "four months statute" cited above was later codified at Code 1940, Tit. 7 § 279: "When a party has been prevented from making his defense by surprise, accident, mistake, or fraud, without fault on his part, he may, in like manner, apply for a rehearing at any time within four months from the rendition of the judgment." This court more recently noted that Rule 60(b), A.R.C.P., incorporated "most of § 279 (the "four months statute"), but some part of the wording is different." Phillips v. D. & J. Enterprises, 292 Ala. 31 at 33, 288 So.2d 137 at 138 (1973).

A proceeding under the "four months statute" or its successor as found in Rule 60(b), is thus a collateral, and not a direct, attack. Judge Samford, speaking for the Court of Appeals, noted the difference between a direct and a collateral attack upon a judgment:

There have been so many cases involving the validity of judgments on collateral attack that the decisions have become somewhat confused as to how far courts would or could exercise their inherent power in going behind judgments rendered by courts of general jurisdiction, where the proceedings all appear to be regular. But if we confine ourselves to proceedings where the judgment is subject of direct attack, the question is not so difficult. It is elementary law that in order for a court to have jurisdiction of the person there must be service of process or voluntary appearance, and in 15 R.C.L. p. 850, § 324, the rule as to default judgment is declared as follows:

"Jurisdiction to enter a judgment against a defaulting defendant rests upon the fact of service itself and the return of service is simply the evidence of the jurisdictional fact."

Where, as a matter of fact, a judgment has been rendered without the court having jurisdiction of the person, courts of superior and general jurisdiction have the inherent power, independent of statutes fixing designated periods of time within which applications should be made to have judgments vacated, to annul and set aside its final judgment after the close of the term at which it was rendered, either for want of jurisdiction of the subject matter or of the parties.

Ex parte Gunter, 17 Ala.App. 313 at 315, 86 So. 146 at...