| Ala. | Jun 15, 1845
It does not appear, either by the bill, answers, or proof, that the record of the cause at law, shows that the process was not served on the complainant, but the fair inference is, that the record does not sustain the allegation of the bill, or the Chancellor would doubtless have noticed it in his decree. Be this as it may, the complainant was not bound to sue out a writ of error to reverse the judgment, that he might defend himself at law, but he might waive his legal remedy, if an appellate Court could have afforded one, and seek to annul the judgment against him through the medium of a Court of Equity. Reynolds v. Dothard, et al. 7 Ala. 664" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/reynolds-v-dothard-6502489?utm_source=webapp" opinion_id="6502489">7 Ala. Rep. 664, is conclusive upon this point.
This case does not come within the influence of Lockhart, et al. v. McElroy, 4 Ala. 572" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/lockhart-v-mcelroy-6501859?utm_source=webapp" opinion_id="6501859">4 Ala. Rep. 572, in which it was held to be com-petentfora Courtto prevent an improper from use being made of an execution issued under its authority, by awarding a supersedeas; and this although the objection does not appear of record. Here the objection is not, that the execution was not warranted by the judgment; this is conceded by the bill, which affirms that the
It is explicitly alledged that the judgment was rendered against the complainant without consideration, fraudulently, and though no notice was given him of the pendency of the suit, by the service of process or otherwise. Taking this to be true, and it is clear that there was no opportunity to defend at law. If, under such circumstances, Chancery could not give relief, then the complainant, though he have moral justice on his side, and might have made defence at law, if he had notice, is now remediless without any fault of his. It may be that the sheriff’s return is a matter of record, and cannot be falsified by a plea, yet we have have always considered, that it is not so conclusive but a defendant may alledge the want of notice as an excuse for not making defence at law. [See Brooks, et al. v. Harrison, 2 Ala. 209" court="Ala." date_filed="1841-01-15" href="https://app.midpage.ai/document/brooks-v-harrison-6501429?utm_source=webapp" opinion_id="6501429">2 Ala. Rep. 209; Gibbs & Labuzan v. Frost & Dickinson, 4 Ala. 720" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/gibbs-v-frost-6501895?utm_source=webapp" opinion_id="6501895">4 Ala. Rep. 720.]
It does not appear, by proof so conclusive as to make it impossible to be otherwise, that the son of the defendant, Tidmore, signed the note in question instead of the complainant. Yet we think it-cannot be reasonably doubted, that the note of which the witnesses spoke, is the one on which the judgment was obtained. They agree in their amounts and dates, and as it does not appear that the son ever signed more than one note for his father, it may be fairly inferred that the complainant did not unite with the father as a co-maker; especially, in the absence of all proof tending to such a conclusion.
The defendants do not positively affirm that the service of process was effected upon the complainant, but their answers are merely an expression of their opinion or belief. To overbalance such a denial of an allegation, it certainly does not require proof the most stringent and conclusive.
It is a general rule, that the party holding the affirmative of the issue, must sustain it by proof, but there are some exceptions in which the pi'oposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions, it is said, includes those cases in which the plaintiff grounds ]iis right of action upon a negative allegation, and where, of
In respect to the objection, that the proof offered by the complainant, touching the note, should not have been received, we think it cannot be supported. The bill and answers all admit the existence of the note to which it is supposed the testimony relates, as the foundation of the action in which the judgment was recovered. It is conceded that such a note as is indicated by the record is really in existence, and the only question is, whether it was made by the complainant or some one bearing his name, The pleadings make the note, with all the proceeding at law thereon, evidence. Either of the parties may use it, if they think proper, but the failure to produce the note, will not render incompetent all evidence tending to show which of several persons of the same name made it. If such evidence is insufficient,, without the production of the note in fact, of course the Chancellor will only accord to it its proper effect, but there would he-no warrant for its exclusion in toto.
If it appeared from the writ, that it was served upon an individual of the complainant’s name, the prima facie intendment would be, that it was duly executed, and that he had notice of the pendency of his suit. But whenever it was shown that the complainant was not a party to the writing, but it was made by another person of the same name, resident in the same county, then the presumption would be wholly repelled, and no inference