Raine v. First Western Bank

• Citation: 362 So.2d 846
• Parties: Sam RAINE, Jr., et al. v. FIRST WESTERN BANK. 77-392.
• Decision Date: 25 August 1978
• Court: Alabama Supreme Court

Page 846

362 So.2d 846

Sam RAINE, Jr., et al. v. FIRST WESTERN BANK.

77-392.

Supreme Court of Alabama.

Aug. 25, 1978.

Rehearing Denied Sept. 29, 1978.

Phil Joiner, Samuel Maples, Birmingham, for appellants.

Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee, First Western Bank.

BEATTY, Justice.

A default judgment was entered against defendants, Sam Raine, Jr. and Norman Ceravolo, in favor of plaintiff, First Western Bank, for $30,040.48 and costs. Defendants' 60(b) motion to set aside entry of default was denied by the trial court and this appeal follows. Plaintiff moves this Court to dismiss the appeal as untimely filed. The motion to dismiss is denied; however, the trial court's denial of defendants' motion to set aside the default is hereby affirmed.

The lawsuit below was based on a default by B & B Coal Co., Inc., Billy Hyche and Billy Kirby, as makers, on the payment of Two promissory note and security agreements held by plaintiff Bank. The first (and only note involved on this appeal) was "endorsed" by the defendants Raine and Ceravolo when the note was executed. Collateral consisting of mining equipment and several vehicles located in Tuscaloosa County secured this note. On two different occasions, without notice to the defendants, a secured vehicle was released from the agreement by the plaintiff Bank.

On August 3, 1976 the plaintiff filed suit against these parties (against Raine and Ceravolo on the first note only) in Tuscaloosa County Circuit Court. The pertinent part of the complaint follows:

1. Plaintiff holds a security interest and is entitled to the immediate possession of the following described property:

(collateral described)

2. (a) On or about the 28th day of January, 1976, Defendants, B & B Coal Company, Inc., Billy Hyche, Sam Raine, Jr., and Norman Ceravolo, executed a Promissory Note and Security Agreement to Plaintiff in the sum of Forty Eight Thousand, Four Hundred, Twenty-Nine and 78/100 ($48,429.78) Dollars, . . . The aforementioned note and security agreement provided, among other things, that a security interest in the above described property listed in paragraph 1 hereinabove was being granted the Plaintiff to secure the payment on said note and all other amounts due or to become due under said note. . . .

Detinue bond was signed and an Order for Writ of Seizure pursuant to the complaint and 64(b), ARCP decreed. A return of service of process was made by a Jefferson County Deputy Sheriff certifying that these defendants were personally served in Birmingham on August 11, 1976. A year later, on August 10, 1977, default judgment was entered against the defendants and a Writ of Inquiry issued for ascertainment of damages. These damages were assessed and entered on September 9, 1977.

On September 30, 1977 the defendants moved to set aside the entry of default. This motion, as later amended, claimed in essence that the default judgment was void or invalid, that the court made a mistake in rendering judgment on the complaint, and that meritorious defenses were available to the defendants.

A hearing on the motion was held November 22, 1977. After a brief was filed by the defendants on December 5, 1977 the trial court took the matter under advisement and on January 23, 1978 entered its order overruling and denying the motion to set aside the default judgment.

The defendants filed notice of appeal to this Court on February 21, 1978.

The plaintiff contends that the defendants' notice of appeal on February 23, 1978 was filed after the forty-two day period of Rule 4, ARAP, and hence was untimely. It is clear from the record, however, that the appeal was timely made.

Except as otherwise provided therein, Rule 4(a)(1), ARAP requires that:

(I)n all cases in which an appeal is permitted by law as of right to the Supreme Court . . . the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (six weeks) of the date of the entry of the judgment Or order appealed from. (emphasis added)

Rule 3(c), ARAP requires the notice of appeal to specify among other things the judgment, order or part thereof appealed from. Defendant filed notice of appeal on February 23, 1978 from the Order denying the motion to set aside the default judgment. This was well within the forty-two day period measuring from January 23, 1978, the day the order denying the motion was handed down.

On the question of whether the order appealed from was an appealable order that issue was decided in Cockrell v. World's Finest Chocolate Co., Inc., 349 So.2d 1117 (Ala.1977). See also, Greenspahn v. Joseph E. Seagram & Sons, 186 F.2d 616 (2d Cir. 1951); Wright & Miller, Federal Practice and Procedure: Civil § 2871. It is equally well-settled that the denial of a 60(b) motion does not bring up for review on appeal the correctness of the judgment which the movant seeks to set aside, but is limited to deciding the correctness of the order from which he appeals. Cockrell, supra; Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Wright & Miller, Federal Practice and Procedure: Civil § 2781. In reviewing such an order the courts possess discretion in passing on an attack upon a judgment, and in exercising this discretion they attempt to balance the desire to remedy injustice against the need for finality of judgments. See Committee Comments, Rule 60, ARCP; Wright & Miller, Supra § 2857.

In order for one to obtain 60(b) relief, he must allege and prove one of the grounds set out under the rules, together with a meritorious defense to the action. Taylor v. Taylor, 49 Ala.App. 306, 271 So.2d 503 (1973); Trueblood Grayson Shops of Tennessee, Inc., 32 F.R.D. 190 (E.D.Va.1963). On the other hand if the judgment which forms the basis of the appeal is a void judgment, then such a judgment will negate the necessity of showing a meritorious defense. Modernage v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

In this case the defendants' motion to set aside the default judgment essentially sets out grounds of (1) Void judgment under 60(b)(4), and/or (2) Mistake under 60(b)(1).

The defendants argue that affidavits submitted by them to the court were sufficient to rebut the presumption in favor of the correctness of a sheriff's return. That argument overlooks the decisions which have held that a sheriff's return of service is Prima facie evidence of its correctness, and the party challenging it has the burden of establishing lack of service by clear and convincing proof, Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969); Howard v. Drinkard, 261 Ala. 555, 74 So.2d 704 (1954); Bastion-Blessing Co. v. Gewin, 217 Ala. 592, 117 So. 197 (1922); Gray v. Hanby, 204 Ala. 559, 86 So. 548 (1920); Speegle v. Citizens Bank, 346 So.2d 455 (Ala.Civ.App.1977), and additionally, overlooks those decisions holding that a sheriff's return will not be invalidated upon the uncorroborated statement of the parties in which they deny service upon them. Howard v. Drinkard, supra; Eidson v. McDaniel, 216 Ala. 610, 114 So. 204 (1927); King v. Dent, 208 Ala. 78, 93 So. 823 (1922). Therefore, as defendants did not meet their burden of proof we cannot hold as a matter of law that the judgment was void or that the trial court abused its discretion in denying the 60(b) motion on this...