McDonald v. Cawhorn

• Decision Date: 13 June 1907
• Citation: 152 Ala. 357,44 So. 395
• Parties: MCDONALD v. CAWHORN.
• Court: Alabama Supreme Court

44 So. 395

152 Ala. 357

MCDONALD v. CAWHORN.

Supreme Court of Alabama

June 13, 1907

Appeal from Chancery Court, Lauderdale County; W. H. Simpson Chancellor.

Bill by Lydia McDonald against W. W. Cawhorn, as administrator of Betsie McCluskey. From a decree for defendant, complainant appeals. Affirmed.

The bill alleges that a judgment by default was rendered against complainant and her husband, F. S. McDonald, on a note, in the sum of $638.97 and costs, and that execution had issued on it and had been levied upon lands therein described; that the property so levied on has been advertised for sale in satisfaction of the execution, etc. The defense which complainant alleges she has to the judgment and the note upon which it is founded is that the note was executed by her husband, that no part of the consideration moved to her, and that some months after the note was executed she signed the same as surety for her husband. Upon this is based the allegation that the note is void, and the judgment obtained thereon as against her is also void. It is alleged that no notice of the filing of the suit was ever served on her either by publication or otherwise, and that the court was without jurisdiction to hear and determine the cause. The proof showed a service of process upon the defendants in the suit, and the issue in dispute was whether it was in Tennessee or Alabama.

John T Ashcraft, for appellant.

Geo. P Jones, for appellee.

ANDERSON J.

The burden of proof was upon the complainant to show that the process was served in Tennessee; but as to what would be the result, if this fact was satisfactorily established, we need not determine, as we do not think she has successfully proven that the dining room in which the paper was left was not in Alabama. All of the witnesses agree that the house is on or near the state line, while the sheriff, a disinterested witness, testifies that the dining room is in Alabama, and the only evidence to the contrary is that of the complainant and her husband, who are both interested and who could have doubtless proven the location of the room in Tennessee by disinterested witnesses, if such is the case.

Assuming therefore, that the judgment was not void, the next inquiries are: Did the complainant have notice or knowledge of the suit against her? and has she a meritorious defense? If she proves that she had no notice or knowledge of the suit, and that she has a...