Gray v. Handy

THOMAS, J. The appeal was from a judgment of the circuit court denying appellant’s petition under the four-month statute to set aside a judgment by default. The judgment was rendered on May 31, 1919, and appellant’s petition was filed on July 23,1919. The lack of service of the original summons and complaint was averred, or the lack of notice of the pendency of said cause, and that petitioner had a meritorious defense to the action in question. On the hearing of the petition the witnesses for both sides were examined orally before the court. [1] A question of conflict as to service of the original summons and complaint is presented. The decision rested upon the ascertainment of a question of fact. The tria/ court, or its presiding judge, had the benefit of observing the manner and demeanor of the respective witnesses and the better opportunity to pass upon the credibility of the testimony. The finding, denying the motion, has the force of a verdict of a jury. Ray v. Watkins, 203 Ala. 683, 85 South. 25; Bowling v. State, 85 South. 500; 1 Connors-Weyman Steel *560 Co. v. Harless, 202 Ala. 317, 80 South. 399, 400; City of Mobile v. Rush, 202 Ala. 628, 81 South. 570. This rule has been applied in chancery cases, where the testimony was taken orally before) the court (Andrews v. Grey, 74 South. 62 2 ), and on motions for new trial in equity (Ray v. Watkins, supra). The Act of J.915 (page 722) does not change the rule of Cobb v. Malone, 92 Ala. 630, 9 South. 738, where the trial is had upon evidence ore tenus, or partly so. Caravella Shoe Co. v. Hubbard, 201 Ala. 545, 78 South. 899; Hatfield v. Riley, 74 South. 380; 3 Price v. Price, 74 South. 381; 4 Fitzpatrick v. Stringer, 200 Ala. 574, 76 South. 932; Faulkner v. Fowler, 201 Ala. 685, 79 South. 257. [2] The instant proceeding, however, is not under the act of 1915 (page 722) for the granting or refusal of a new trial, but under .the four-month statute (section 5372, Code). In Eminent Household, etc., v. Lockerd, 80 South. 412, 5 the latter statute was said to be “in the nature of a declaration of facts upon which the petitioner predicates his claim for relief,” rp.th.er than an exercise of the plenary, power of the court to set aside its own judgments for proper cause shown within 30 days from the rendition thereof or on motion as provided by statute (Acts 1915, p. 708, §3); that on a motion under Code, § 5372, it is the duty of the court to see “that the substantive law is enforced, and one requirement of that law, based upon sound, policy, is that parties impleaded must he diligent in the assertion of their rights.” If there was service of process as shown by the sheriff’s return and by the oral evidence for-appellee in the present case, there was nothing for the court to do on the call of the docket except to enter judgment, whether by default or, nil dicit was of no consequence. It was the duty of the defendant, or, if he had employed same, one of his counsel, to know when his case would be called for trial, and, to attend at such time with his defense, or cause for continuance, and to urge the same to the court. When the judgment was moved for on the default of the defendant, no course was open to the court but to render judgment as was done on the proof of the amount of damages being made to the court. [3] Under the issue of the iack of due notice, where the return of the sheriff shows personal service, the burden of proof was upon petitioner to establish the fact of his failure of knowledge or notice of the pendency of the suit before and at the time of the taking of the judgment by default-, by evidence reasonably satisfying the court that he had no such knowledge or notice, so as to give the court jurisdiction to render the judgment against him. Adams v. Walsh, 200 Ala. 140, 75 South. 888; Waldrom v. Waldrom, 76 Ala. 285; Dunklin v. Wilson, 64 Ala. 162. In Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 South. 97, 99, Code, § 5372, was up for construction, though it was declared that trial courts retain control of their journals during the term or for the period specified by statute, and that a court of equity will enjoin a judgment which purports to have been rendered by default (1) on timely application therefor and averment and proof that the defendant was not served with process; (2) that defendant has a good and meritorious defense available to him in a court of law; and (3) that he will be able to prove on another trial. National Fertz. Co. v. Hinson, 103 Ala. 532, 537, 15 South. 844; Rice v. Tobias, 89 Ala. 214, 7 South. 765; McDonald v. Cawhorn, 152 Ala. 357, 44 South. 395; Fields v. Henderson, 161 Ala. 534, 50 South. 56; Raisin Fertz. Co. v. McKenna, 114 Ala. 274, 21 South. 816; Gill v. More, 200 Ala. 511, 76 South. 453, 458; Dunklin v. Wilson, 64 Ala. 162; 6 Pom. Eq. Jur., §§ 658, 663. We are of opinion that no reversible error ■ was committed on the refusal to set aside and declare the judgment in question null and void, and to grant a rehearing under the provision of Code, § 5372. Affirmed. ANDERSON, O. X, and McCLELLAN and SOMERVILLE, JX, concur. Footnotes [tg] — ,Unr other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes [1] Ante, p. 405. [2] 199 Ala. 162. [3] 199 Ala. 388. [4] 199 Ala. 433. [5] 202 Ala. 330.