Whitfield v. Sanders
| Decision Date | 01 December 1978 |
| Citation | 366 So.2d 258 |
| Parties | T. WHITFIELD, alias Eddie Lee Whitfield v. Gladys SANDERS et al. 77-395. |
| Court | Alabama Supreme Court |
Charles A. J. Beavers, Jr., William L. Thuston, Birmingham, for appellant.
James A. Turner, of Turner, Turner & Turner, Tuscaloosa, for appellees.
This is an appeal from a denial of a motion to set aside a decree authorizing the sale of land. We reverse.
The parties are all heirs at law of Mose Lewis, deceased, who had owned an 80 acre parcel of land in Tuscaloosa County. Thirty-nine parties apparently had an interest in this land at the time of its sale. On April 24, 1975, a Bill of Complaint for the Sale for Division of Lands was filed by Gladys Sanders, Steve Newman, et al., alleging that the real property could not be equitably divided in kind among the numerous heirs at law and requesting that the property be sold at auction. The complaint named the appellant by his nickname, T. Whitfield, as a defendant, alleging that his residence was unknown and not ascertainable after diligent inquiry. Whitfield and other unknown defendants were subsequently served by publication in Tuscaloosa County. On July 17, a default judgment was entered against Whitfield, et al., and the property On September 28, 1976, Whitfield filed a Motion to Set Aside Decree Authorizing Sale of Land. As a basis for relief he asserted that Steve Newman and one other plaintiff were friends of his who knew his address in California and were in regular contact with him over family matters. Specifically, Whitfield claimed that letters had been forwarded to him at his correct address by Steve Newman's wife, Alberta, and that Whitfield had phoned the Newmans and had received a call from Steve. In addition, Steve Newman and another plaintiff knew Whitfield's mother, Minnie Cook, who had his address, and Newman saw her at least once or twice a week. Nevertheless, they did not contact her in an attempt to determine Whitfield's whereabouts so he could be notified of the suit. Whitfield's motion concluded by alleging that the court was without jurisdiction to render a default judgment against him, a fraud had been perpetrated upon the court because the plaintiffs did Not diligently seek Whitfield's address as stated in their affidavit, and the judgment violated Whitfield's right to due process of law under the 14th Amendment.
was sold on October 14, 1975, for $18,000. A check for Whitfield's share of the proceeds (the largest portion of any of the heirs) was left for him at the Tuscaloosa County courthouse. Whitfield picked up the check on an unspecified date but has never cashed it.
A hearing was held on Whitfield's motion where evidence was taken ore tenus. The trial court denied the motion without detailing its findings of fact. The principal witnesses were Whitfield's mother, Minnie Cook, and Steve, and Alberta Newman. After a thorough review of the record, we hold that the evidence is insufficient to show that Any effort, diligent or otherwise, was made to ascertain Whitfield's address. The testimony was not in any way contradicted. Newman's wife, Alberta, had Whitfield's correct home address in California. Whitfield's mother, who could have been easily contacted by Newman, by his own admission, had Whitfield's correct business address in California. In response to the question, "Could you have found out how to get in touch with him if somebody had asked you?" Newman himself testified, (Emphasis supplied.) Apparently Newman's attorney failed to ask him if it would be possible to obtain Whitfield's address. Consequently, the affidavit of Newman's attorney which stated, "plaintiffs have been unable to ascertain (Whitfield's residence and address) after diligent inquiry" was simply unwarranted.
Under the facts of this case, notice by publication violated the well-known due process standards outlined in Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In ...
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Boudreaux v. Kemp
...in perfecting personal service of process on a defendant and the failure to do so precludes notice by publication. Whitfield v. Sanders, Ala., 366 So.2d 258 (1979). The failure to properly notify a defendant of the action filed against him deprives the trial court of personal jurisdiction o......
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March v. Stringer
...unclaimed, efforts which were perhaps more burdensome than those which could have been pursued in this case. Also, in Whitfield v. Sanders, 366 So.2d 258 (Ala.1978), this Court held that a default judgment based on service by publication was void since the defendant easily could have been s......
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Walker v. Cleary Petroleum Corp.
...has, when necessary in order to comport with constitutional standards, found notice by publication to be unacceptable. In Whitfield v. Sanders, 366 So.2d 258 (Ala.1978), we quoted controlling language from " '[W]hen notice is a person's due, process which is a mere gesture is not due proces......
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Hutchins v. Shepard
...(Ala.1977); Downs v. Downs, 260 Ala. 88, 69 So.2d 250 (1953); Stephens v. Stephens, 233 Ala. 178, 170 So. 767 (1936). In Whitfield v. Sanders, 366 So.2d 258 (Ala.1978), we held that where Uncontradicted evidence established that no effort was made to locate the defendant and that his addres......