Paul v. Malone
| Decision Date | 17 June 1889 |
| Citation | 6 So. 351,87 Ala. 544 |
| Parties | PAUL v. MALONE ET AL. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Geneva county; J. M. CARMICHAEL, Judge.
A. L. Milligan & Son, for appellant.
The defendant below, appellant here, moved the court to set aside the return of the sheriff showing the service of a copy of the complaint on him. An issue of fact was made upon this motion, and submitted to the court, and the refusal of the court to vacate the return on the evidence introduced constitutes the only matter now assigned as error. The return of the sheriff imports verity, and the burden of proving it to be false rests on the party assailing it, and must be discharged by evidence sufficient to overcome the presumption arising from the fact that it was made in the line of his duty by a sworn officer. Dunklin v. Wilson, 64 Ala. 162. The bill of exceptions in this case recites that "in support of said motion defendant introduced himself as a witness, and his testimony tended" to show that the summons and complaint were never served on him, etc., and that this was all the evidence in the cause. Construing these statements of the evidence most strongly against the appellant, as the rule requires, (3 Brick. Dig. p. 81, § 51,) it appears that there was only a tendency of the evidence to establish certain facts. In cases like this, where this court is required to pass on the sufficiency of the evidence to support the conclusion of fact reached by the court below, it will not suffice to state the mere tendency of the evidence. It cannot be assumed that this mere tendency was sufficiently strong to overturn the presumption of the verity of the officer's return, and to reasonably satisfy the mind of the court that there had been no service of process; and upon this ground, though it might be justified also on others, the judgment of the circuit court will be affirmed.
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Nuttallburg Smokeless Fuel Co. v. First Nat. Bank of Harrisville
...a direct attack in the same court where the process is returned in the same action, or by procedure to vacate the judgment. Paul v. Malone, 87 Ala. 544, 6 So. 351; Kavanaugh v. Hamilton, 53 Colo. 157, 125 P. Ann.Cas. 1914B, 76; Buckingham v. Osborne, 44 Conn. 133 (it seems that Connecticut ......
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Nuttallburg Smokeless Fuel Co. v. First Nat'l Bank Etc. Nuttallburg Smokeless Fuel Co.
...permit a direct attack in the same court where the process is returned in the same action, or by procedure to vacate the judgment. Paul v. Malone, 87 Ala. 544; Kavanaugh v. Hamilton, 53 Colo. 157; Buckingham v. Osborne, 44 Conn. 133. (It seems that Connecticut has never held to the verity d......
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Stewart v. Capital Fertilizer Co.
... ... that the date was wrong and that it was in fact executed on ... Sunday. In the case of Paul v. Malone, 87 Ala. 544, ... 6 So. 351, it does not appear whether the motion to set aside ... the return was a distinct proceeding, or was made ... ...
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Hale v. State
... ... full duty, and a sheriff's return prima facie imports ... verity as to the facts stated in it (Paul v. Malone & ... Collins, 87 Ala. 544, 6 So. 351); consequently the ... court, for the purpose of upholding the premature return, was ... warranted ... ...