86 So. 548 | Ala. | 1920
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.
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 trial 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,
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,
Under the issue of the lack 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,
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, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.