McDonald v. Cawhorn

ANDERSON, J. Tbe burden of proof was upon tbe complainant to show that the process was served in Tennessee; but as to what would be tbe result, if this fact was satisfactorily established, we need not determine, as we do not think she has successfully proven that tbe dining room in which tbe paper was left was not in Alabama. All tbe witnesses agree that tbe bouse is on or near tbe state line, while tbe sheriff, a disinterested witness, testifies that tbe dining room is in Alabama, and the only evidence to tbe contrary is that of tbe complainant and her husband, who- are both interested and Avho could have doubtless proven tbe location of tbe room in Tennessee by disinterested witnesses, if such is tbe case. Assuming, therefore, that the judgment was not void, tbe next inquiries are: Did the complainant have notice or knowledge of tbe suit against her? and has she a meritorious defense? If she proves that she bad no notice or knowledge of tbe suit, and that she has a meritorious defense, a court of equity will cancel tbe judgment and enjoin a sale under an execution issued thereupon.— Dunklin v. Wilson, 64 Ala. 162; Freeman on Judgments, §§ 495-498; Rice & Wilson v. Tobias, 89 Ala. 214, 7 South. 765, reported also in 83 Ala. 348, 3 South. 670. It is not sufficient that tbe service of tbe process was merely irregular, or not in strict compliance with tbe [360] statute, to render the judgment subject to collateral attack. It is sufficient, to defeat a cancellation thereof, if the complaining party had notice or knowledge of the suit, and any objection to form or sufficiency was available only in the court which gave it or by a direct appeal. — Freeman on Judgments, § 126, and note. In the case of Rice & Wilson v. Tobias, 89 Ala. 214, 7 South. 765, the complainant was given relief, as the proof showed he was not served with process and had no notice or knowledge of the suit, and that he had a meritorious defense. In the case at bar the summons was laid on the table for the complainant and in her presence. The husband was handed the one for him at the gate, which he read. The husband also admits going to Florence to see about the suit, and that he discussed the purpose of his visit with his wife, but claims that he did not inform her that she was being sued also. We think that the complainant has not only failed to show want of notice or knowledge of the suit, but that the facts and circumstances fully warrant us in holding that she knew of the pendency of the suit and that she was a party defendant. The decree of the chancery court is affirmed. Tyson, C. J., and Dowdell and McClellan, JJ., concur.