Prudential Casualty Co. v. Kerr

• Decision Date: 16 April 1916
• Docket Number: 6 Div. 58
• Citation: 71 So. 979,14 Ala.App. 539
• Parties: PRUDENTIAL CASUALTY CO. v. KERR.
• Court: Alabama Court of Appeals

71 So. 979

14 Ala.App. 539

PRUDENTIAL CASUALTY CO. v. KERR.

6 Div. 58

Court of Appeals of Alabama

April 16, 1916

Rehearing Denied May 30, 1916

Appeal from City Court of Birmingham; A.H. Alston, Judge.

Action by J.W. Kerr against the Prudential Casualty Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment by default was rendered on May 3, 1915. On November 13, 1915 an application was made to set aside the second judgment, and to restore the cause to the docket; the application being based upon the fact that no service of the summons and complaint or copy thereof was had on defendant, or on John Purifoy, secretary of state, and ex officio insurance commissioner for the state of Alabama, and on the further ground that no legal evidence was offered in support of said default judgment, and no evidence introduced at the time to prove or establish the fact that summons and complaint were served on an agent of defendant, or upon any one authorized by law to receive such service on behalf of defendant. The motion further contains the statement that at the time of the default judgment, the judge presiding made a bench note in words and figures as follows:

"May 3, 1915.

"Judgment for plaintiff by default for $260.00. Trial by jury waived."

And that following the bench note, the clerk of the court in volume 34 B, p. 409, made the following minute entry:

"On this the 3d day of May, 1915, came plaintiff by his attorney, and waives a jury trial which was heretofore demanded by him, and defendant being now solemnly called came not, but made default, and the court upon plaintiff's motion proceeds to hear and determine this cause, whereupon it is ordered and adjudged by the court that plaintiff have and recover, etc., his debt and damages as ascertained and assessed by the court upon the proof produced by plaintiff upon the trial of this cause."

It is further alleged that thereafterwards the clerk ran a pen through said order and struck it out, and proceeded erroneously to write up another judgment or minute entry which was not the judgment of the court. This last minute entry shows satisfactory proof being made to the court that John Purifoy, upon whom service of the summons and complaint was had, was at the time of the said service the secretary of state and ex officio insurance commissioner for the state of Alabama, and, as such, duly authorized by law to receive service for said defendant corporation. The motion proceeds to assert that the first judgment entry was the only entry made by the court, and that no proof was made at the time of the rendition of said judgment of service of summons and complaint upon said John Purifoy, or that he was the officer as shown by the second judgment entry. The motion for new trial was denied on...