The bill was filed by appellant to enjoin the execution of a judgment. The appellant avers in liis bill that in the suit in which the judgment was obtained against Barton Bros., a partnership, a judgment was rendered against him as a partner, whereas in fact he was not a member of the partnership at any time; that he did not owe the plaintiff anything, either as a member of said firm or as an individual. A further averment is that on the 13th day of March, 1916, the judgment was rendered against the partnership and against appellant as a member thereof; “that on; the 1st day of April, 1916, an execution was issued from the said court and by the clerk of said court and placed in the hands of W. T. Williams, as sheriff of said county, for collection; that said W. T. Williams, as sheriff, notified your petitioner that said execution was in his hands and that he would be compelled to make a levy unless the judgment was paid.” It is further averred that at no time had complainant any notice of said suit until informed by the said sheriff of said execution, as stated ; that ho summons and complaint, nor copy of such, was ever served upon complainant; “that he had no notice that he was sued until so notified by the said sheriff as set out above; that he had a good and lawful defense to said suit, as set out above, and was prevented from interposing same, by having no notice of said suit; that when the said sheriff so notified your petitioner, * * * your petitioner * * * notified the sheriff that he had not been served with any summons and complaint, and had not had any notice of said suit until and up to that time; that the said sheriff W. T. Williams levied on two black mare mules four years old, the property of your petitioner, under said execution; that your petitioner executed a forthcoming bond for said mules and kept same in his possession.” It is further averred that complainant went to see the plaintiff in judgment, or its agents, with reference to said levy, and that its attorney of record agreed to have the sheriff release the property of complainant, so levied upon; but that the said attorney failed to so notify the sheriff, and the sale of said property was continued from time to time, complainant all the while relying on said agreement with said attorney of record. The prayer of the bill is for a writ of injunction; restraining the sheriff and the said Burton Manufacturing Company, a corporation, the plaintiff in said judgment, from making a sale of said property, and for general relief. The bill was sworn to on October 7 and filed on October 10,1916. The injunctive writ issued pursuant to the order therefor and the giving of the bond prescribed.
After demurrers and sworn answer of respondent filed, there was submission on .demurrers to the bill as amended, and on January 31, 1917, ihe demurrers were overruled. On April 20th, defendant moved to dissolve the injunction, because there was no equity in the bill, and upon the sworn answer filed by the respondent. On May 4, 1917, by leave of the court, complainant amended his bill by averring that he was notified by the said sheriff, W. T.- Williams, or by one of his -authorized deputies of said execution, by letter or written notice, during the month of August, 1916, “which was the first notice or knowledge that he had ever had of said judgment, suit, or execution; that he had had no notice or knowledge of said suit, judgment, or execution, until so notified by the said sheriff, or his authorized deputy, which was, to wit, five months after said judgment had been rendered against him; that said notice was long after the adjournment of said court, and after the expiration of the time within which he could have made application to said court to have said judgment set aside.” This amendment was duly sworn to on said date. On May 11th the respondent refiled demurrers to the bill as amended, and, in addition thereto, denied under oath the allegations contained in the amendment.
On final submission on pleading and proof, on demurrer to the bill as amended, and on the motion to dissolve the temporary writ of injunction, it was decreed that the writ of injunction be dissolved, and that the bill as amended, being without equity and unsupported by the proof, be dismissed at the cost of the complainant. Pending appeal to this court the temporary injunction was on the 21st day of November, 1917, duly reinstated. The assignment of errors challenges the decree, in dismissing the bill, in dissolving the temporary writ of injunction, and in failing to make such temporary writ permanent, as prayed. The record does not clearly disclose whether part of the testimony was taken ore tenus, in open court before the judge thereof, or whether it was elicited by way of answers to depositions propounded according to the usual method prevailing in chancery courts. If the testimony or any material portion thereof, was given; ore tenus before the trial judge, the rule declared in Andrews v. Grey,
“That after the lapse of ten days from the rendition of a judgment or decree the plaintiff may have execution issued thereon, and after the lapse of thirty days from the date on which a judgment or decree was rendered the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial has been filed and called to the attention of the court, and an order entered continuing it for hearing to a future day.”
The fair import of the evidence of witness Carroll was that he sent a letter, giving notice to complainant and his brother, of this judgment — of the amount thereof and the costs. The fact that this letter,was not returned was prima facie evidence that he had knowledge of the existence of the judgment against him long before August. The burden of proof was upon complainant to establish his lack of notice. The sheriff testified without equivocation that the execution came into his hands on the 1st day of April, 1916, and that he gave notice to the defendant therein of the fact of the receipt of said execution, by letter properly stamped and addressed and mailed to complainant at his-post office, the envelope used being the official euvelope of the sheriff; that this was “about two or three days” after said execution came into his hands; that the envelope had printed on it, “After five days return to W. T. Williams,” and under this, “Sheriff of Winston County, Double Springs;” and that this letter was never returned. Mutual Aid Ass’n of Alabama v. Stewart,
Under this evidence the date of complainant’s (defendant in judgment’s) first notice of the rendition of the judgment against him was not later than April *183 4th thereafter — thus giving ample opportunity to complainant to apply to the trial court for a vacation or modification of the judgment, as to himself, because of the irregularity complained of. The evidence is not silent, however, of positive testimony tending to show notice brought home to complainant of the pendency of the suit. The deputy sheriff (Mr. Dodd), a neighbor of defendant in the suit and judgment, testified that he remembered receiving' from the sheriff the summons and complaint in the ease of Burton Manufacturing Company v. Mack, John, and Jim Barton, and the partnership of Barton Bros.; that he left a copy with Mack Barton, one with Jim Barton’s wife, and one with John Barton’s girl (this complainant’s daughter), the father not being at home. This witness further 'testified, against complainant’s objection and exception, that he told complainant’s daughter to give the summons to her father, and that she replied that she would do so, whereupon, as deputy sheriff, he made return to the sheriff of the county of the service of the summons and complaint on the said Bartons as members of that partnership.
In the present condition of the record, having due regard for the burden of proof, we are of the opinion that complainant has failed to carry the burden of the evidence by showing that he did not know of the existence of the judgment against him until too late to apply to the court of its rendition,, to have it set aside. The decree of the circuit court in equity is affirmed.
Affirmed.