March v. Stringer
| Citation | 518 So.2d 65 |
| Parties | George Markham MARCH III v. Ivie Clayton STRINGER. 85-1240. |
| Decision Date | 02 October 1987 |
| Court | Supreme Court of Alabama |
John D. Richardson and Weyman W. McCranie, Jr., of Brown, Hudgens, Richardson, Mobile, for appellant.
Joseph C. McCorquodale III of McCorquodale & McCorquodale, Jackson, for appellee.
This is an appeal by the defendant, George Markham March III, from the denial of his Rule 60(b), A.R.Civ.P., motion for relief from a default judgment.
On February 2, 1983, an accident involving the parties to this action occurred in the Bel Air Mall at Mobile. According to the plaintiff, Ivie Clayton Stringer, he was struck and severely injured by an automobile being driven by March. According to March, Stringer walked into the side of his automobile.
Thereafter, Stringer employed Joseph C. McCorquodale III, of Jackson, Alabama, to proceed with a claim on his behalf in connection with the accident. Meanwhile, March telephoned his insurance agent within a couple of hours after the accident and reported it.
Stringer's attorney obtained March's address from the accident report and, on February 21, 1983, wrote to him at 1201-B Primeter [sic] Drive, Mobile, Alabama:
March took this letter to his insurance agent or adjuster (March used both terms at the hearing). Ms. Lequita Robinson, a claims representative for the insurance company, acknowledged to Stringer's attorney on February 28, 1983, that the insurer had received this letter.
Later, the insurer referred the file to Ray McGraw, an independent adjuster, who, on July 25, 1983, wrote to Stringer's attorney that he was handling the file, and concluded:
On September 6, 1983, Stringer's attorney wrote to McGraw as follows:
Stringer's attorney wrote again on September 28, 1983:
The attorney wrote another letter on October 7, 1983:
On December 15, 1983, he sent another letter:
Stringer's attorney testified that during this correspondence he had no telephone conversations with McGraw. According to McGraw, however, he had telephone conversations with Stringer's attorney, during which he discussed the claim and his company's position, at least until December 27, 1983.
On January 24, 1984, Stringer filed an action for damages in Clarke County against March. The complaint contained two counts, one based on negligence and one on wanton conduct. The summons filed therewith stated that the defendant "may be served at: 1201-B Primiter Drive, Mobile, Alabama 36605." This summons was returned "Not Found," as acknowledged by a deputy sheriff's signature. Then service of process was attempted by certified mail on March 26, 1984, at the same address. This certified mail process was returned on April 20, 1984, "Unclaimed."
On June 19, 1984, Stringer's attorney moved by affidavit in the trial court for service by publication. The pertinent part of that affidavit follows:
On that day, the circuit clerk of Clarke County issued an order that publication be made once a week for four consecutive weeks in The South Alabamian, a newspaper published in Clarke County, and in The Mobile Press Register, a newspaper published in Mobile County, "requiring the said George Markham March, III, to plead or answer to the complaint in this cause by the 19th day of August, 1984, or in default thereof, thirty days thereafter a default judgment may be taken against said defendant." Subsequently, a legal notice, ordered by the circuit clerk of Clarke County, was published on June 28, July 5, July 12 and July 19 in both of the newspapers referred to above.
Apparently there arose thereafter some question concerning the sufficiency of the previous affidavit for service by publication, for on December 5, 1984, Stringer filed a motion for service by publication, from which we quote in pertinent part:
The attached affidavit stated, in pertinent part:
We note that the motion and the affidavits do not specify any of the efforts made by Stringer's attorney to locate March.
On December 5, 1984, the Clarke Circuit Court entered the following order:
Publication of this order ensued as directed. Service by certified mail was also attempted on December 6, 1984, at 1201-B Primiter Drive, Mobile, but was returned "not claimed" on January 2, 1985.
On March 18, 1985, Stringer's motion to withdraw his jury demand was granted by the Clarke Circuit Court. On that same date, the circuit court ordered...
To continue reading
Request your trial
-
McBrayer v. Hokes Bluff Auto Parts
...judgment can be entered on service by publication." See also Fisher, supra; Wise v. Siegel, 527 So.2d 1281 (Ala.1988); March v. Stringer, 518 So.2d 65 (Ala.1987); Gross v. Loewen, 522 So.2d 306 (Ala.Civ.App.1988); Richardson v. Arrington, 431 So.2d 1301 (Ala.Civ.App.1983); Miles v. McClung,......
-
Boudreaux v. Kemp
...court file, that were made in an attempt to locate Frank's heirs before seeking to serve them by publication. As noted in March v. Stringer, 518 So.2d 65 (Ala.1987), with regard to the plaintiffs' failure to take even the minimal step of consulting telephone directories, "reasonable diligen......
-
Ex parte American Resources Ins. Co., Inc.
...with due process. Pollard v. Etowah County Comm'n, 539 So.2d 225 (Ala.1989); Cassioppi v. Damico, 536 So.2d 938 (Ala.1988); March v. Stringer, 518 So.2d 65 (Ala.1987); Smith v. Clark, 468 So.2d 138 (Ala.1985). Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only ......
-
Bracknell v. S.E. Belcher, Inc.
...entry of a default judgment and directing that the judgment be set aside); Johnson v. Moore, 514 So.2d 1343 (Ala.1987); and March v. Stringer, 518 So.2d 65 (Ala.1987) (reversing the trial court's denial of a Rule 60(b), A.R.Civ.P., motion for relief from a default Because the default judgme......