Morrison v. Covington
| Decision Date | 24 April 1924 |
| Docket Number | 7 Div. 472. |
| Parties | MORRISON v. COVINGTON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
Proceeding by Shaley Covington for common-law certiorari to quash a judgment rendered by a justice of the peace against him and in favor of G. F. Morrison. From a judgment granting the writ and annulling judgment rendered by the justice of the peace plaintiff Morrison appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.
F. M Savage, of Center, for appellant.
Hugh Reed, of Center, for appellee.
This was a proceeding in the circuit court by appellee for the common-law writ of certiorari to quash and hold for naught a judgment rendered by a justice of the peace at the suit of appellant against appellee. On the hearing in the circuit court, the judgment was quashed, and plaintiff has appealed.
Defendant's complaint against the judgment was that there had been no service of summons and complaint on him, nor had he appeared before the justice of the peace. The transcript of the proceedings had before the justice of the peace, certified to the circuit court in response to the writ of certiorari showed service as follows:
The record showed no appearance in lieu of summons. The judgment was by default.
The statute (section 4647 of the Code of 1907) requires that summons be executed by personal service of a copy on the defendant, and without it, or an appearance in person or by attorney shown by the record, no valid judgment can be rendered against the defendant. Parol proof cannot be received to establish either service or waiver by appearance. Independent Pub. Co. v. American Press Association, 102 Ala. 475, 491, 492, 15 So. 947. The constable's return in this case shows no service of summons as required by the statute. Melvin v. Clark, 45 Ala. 285.
Judgment was rendered by the justice of the peace November 11, 1922. Certiorari for review was ordered by the circuit judge on the 21st day of April, 1923. The writ was issued June 15 and served on appellant here June 16, 1923. Thereupon, on appellant's motion, July 21, 1923, at the end of an ex parte proceeding, the justice of the peace undertook to amend his judgment, as of November 11, 1922, by incorporating therein the following recital:
"The defendant having previously and three days and more before this day appeared before the court, and having admitted and acknowledged service and receipt of the summons and complaint in the cause, the court, therefore, knowing that defendant had notice, and that this hearing was not without his notice, and to his surprise, it is hereby adjudged," etc.
-and apparently on plaintiff's petition this amended judgment was certified to the circuit court.
It is quite true that the...
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Webb v. French
... ... App.) 140 So ... 180; Ex parte Green, Supt. of Banks, 221 Ala. 298, 129 So ... 72; Nabers' Adm'r v. Meredith, 67 Ala. 333, ... 335; Morrison v. Covington, 211 Ala. 181, 100 So ... 124. In Campbell v. Beyers, 189 Ala. 307, 66 So ... 651, the observation is that section 4140, Code 1907, ... ...
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Clough v. Superior Equip. Corp.
...that method must be followed, and the rule is especially exacting in reference to corporations." The cases of Morrison v. Covington, 211 Ala. 181, 100 So. 124, and Hatch v. Alamance R. Co., 183 N. C. 617, 112 S. E. 529, are particularly in point in the present connection in that they hold t......
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Clough v. Superior Equipment Corp.
... ... especially exacting in reference to corporations. " ... The ... cases of Morrison v. Covington, 211 Ala. 181, 100 ... So. 124, and Hatch v. Alamance R. Co., 183 N.C. 617, ... 112 S.E. 529, are particularly in point in the present ... ...
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Kent v. Kent
... ... place of residence." This affirmatively shows that there ... was no service upon the defendant. Code, § 6529; Morrison ... v. Covington, 211 Ala. 181, 100 So. 124; Independent ... Pub. Co. v. American Press Ass'n, 102 Ala. 475, 15 ... There ... was not, ... ...