97 So. 52 | Ala. | 1923
Lead Opinion
It is unquestionably the law that in order to render a valid judgment against a garnishee he must not only have been served with the writ of garnishment, but, when there has been a conditional judgment for failure to answer the writ, he must also be served with notice before the conditional judgment is made absolute. Section 4324 of the Code of 1907; Lowry v. Clements,
When a judgment has been rendered without compliance with the foregoing requirements, a court of equity has the power to set aside such judgment upon proof by the complainant that he was not served with notice and that he has a meritorious defense. It is well settled, however, that while want of notice is negative in character, the burden of proof is on the complainant to show that he was not in fact served. The return of *109
the officer bears a certain degree of solemnity and is prima facie evidence of the recital thereof, and testimony of the officer will not as a rule be overturned by the mere denial of the complainant that he was served, unaccompanied with such facts or circumstances that leave his evidence merely negative. King v. Dent,
"Neither witness states any fact or circumstance, in aid of his testimony, that was calculated to impress its date on their memories. * * * In the absence of some attending circumstance to fix the attention, associated in the memory with the transaction itself, there is no subject on which human recollection is more frequently at fault, than the particular date of past occurrences."
In this case, however, there are elements which make the denial of Gibson more than mere negative evidence. He not only testifies that he was not served with notice as to the conditional judgment, but after refreshing his memory with a memoranda, which he knew to be correct when made, swore that he was in Birmingham at the time as his expense account kept for a period covering months discloses charges paid for meals and railroad fare on said day. The evidence of Gibson, as well as the memoranda, were admitted in evidence. "The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum." Singleton v. Doe ex dem. Smith,
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.
Addendum
It appears that the memorandum of the witness Gibson, to which we refer, that is, that sheet of the book kept by him showing items spent by him in Birmingham on July 21st — the day the service is claimed to have been made upon him — became detached from the book, and that the commissioner who took the deposition omitted said page or item in transcribing the testimony of said Gibson. After the decree was rendered, and after an appeal had been taken to this court, and before the transcript had been sent up, appellant's counsel made a motion to substitute so as to include said memorandum in the evidence, and the trial court granted the motion; so when the record reached this court it contained the memorandum. The respondent then made a motion to expunge this addition to the record, and this court overruled said motion January 23, 1923, in effect holding that the trial court properly granted the motion to correct the record. The trial court wrote an opinion in the main case, and, also, one upon the motion to substitute, and the latter was considered by this court when passing upon the motion. Some months thereafter this case was submitted on the merits, and as the motion had been previously passed on we found no occasion for reading or considering the opinion of the learned trial court in dealing with the motion, thus considering the case upon the evidence as then disclosed, and overlooked the recital in the last opinion that this evidence was not before the trial court when the decree was rendered, notwithstanding it should have been, and, in fact, was before us by the ruling of the trial court, and which we upheld when passing upon the motion.
We therefore modify our former judgment reversing and remanding with directions to cancel, and now reverse and remand in order that the trial court can reconsider this cause upon all of the evidence which was introduced, but an item of which was inadvertently omitted from the record. It may be that, ordinarily, when the trial court discovered this omission, it should have set aside the decree and the submission; but in justice to the trial court it must be noted that this omission was not discovered or brought to his attention until after the appeal was taken.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur. *110