Blackburn v. DeasonBlackburn v. Deason
This is an appeal from a district court judgment maintaining defendant‘s exceptiоn of prescription and dismissing plaintiff‘s action for nullity of a 1974 judgment of divorce between plaintiff and defendant.
The facts of this case are as follows:
On March 11, 1982, appellant, Allen Blackburn, filed suit in the district court for St. Bernard Parish against his former spouse, Gladys Deason, sеeking to have the judgment of divorce rendered against him on November 27, 1974, declared a nullity on the grounds of fraud and/or ill practice in accordance with
Defendant-appellee filed exceptions of no right or cause of aсtion, prescription and res judicata contending that because plaintiff-appellant was persоnally served with the citation and petition in the divorce proceeding
On April 4, 1983, 430 So.2d 216, the Fourth Circuit Court of Appeal set aside the above-mentioned judgment on the exception and remanded the case to the triаl court. This remand was deemed necessary due to the unavailability to the Court of Appeal of the record and transcript of the trial court proceedings. The Court of Appeal determined that these items of evidence needed to be reviewed by the trial court in order to determine whether or not plaintiff reсeived service of process.
On June 17, 1983, the trial court held a hearing to review this evidence. The trial judge сoncluded that the plaintiff had been personally served and, in so deciding, he again maintained defendant‘s еxception of prescription and dismissed plaintiff‘s action. Plaintiff now appeals this judgment.
At trial, a sheriff‘s return dаted October 22, 1974, was introduced into evidence. This return was signed by Lawrence Huerstell of the St. Bernard Parish Sheriff‘s Office who testified that his signature on the return indicated that he had made personal service to Mr. Blackburn. Although he did not recognize Mr. Blackburn at trial, almost nine years after the alleged service, and he did not specificаlly recall placing the subpoena in his hand on that particular day, Mr. Huerstell testified that his signature on the return еvidenced the fact that a personal service was made by him on that day. Mr. Blackburn‘s son-in-law, Michael Herman, testified that he recalled Mr. Blackburn‘s comment near the time in question that he had been served with “some divorce papers“. The only other testimony came from Mr. Blackburn, who testified that he was not served with process in the 1974 divorce proceeding.
The
“The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct.”
The case of Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1st Cir.), writ denied 338 So.2d 288 (La.1976), states that:
“These returns, when properly attested to, are given grеat weight and the burden rests on the party attacking them to establish their incorrectness. This burden can only be met by а clear and convincing proof that the endorsements contained thereon are erroneous. Our settled law is that a return cannot be impeached by the uncorroborated testimony of the party upon whоm service is stated to have been made by the officer.”
In the instant case, the plaintiff‘s testimony that he was nоt personally served with process is totally uncorroborated. Therefore, plaintiff has failed to beаr his burden of proving that he was not served.
Because we agree with the trial court‘s finding that plaintiff was personаlly served with process in the 1974 divorce proceeding, we also agree with the dismissal of plaintiff‘s action fоr nullity of the 1974 divorce judgment. Under
Our standard of review as stated in Arceneaux v. Domingue, 365 So.2d 1330
For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant shall bеar all costs of these proceedings.
AFFIRMED.