Lawrence v. Stone, 49 So. 376

Lawrence v. Stone

49 So. 376

Ala.

1909

Check Treatment

DENSON, J.

This аction was commenced on the 23d day of June; 1908, in the circuit сourt of Cherokee county against James R. Lawrence аnd F. M. Lawrence. A branch summons and complaint was issued to Calhoun county, and was served upon F. M. Lawrence in that county. The сourt convened on Monday, the 27th day of July, 1908, and on the 30th day of thе same month judgment by default was rendered by the court against both of the defendants. From that judgment, the defendants bring this appeal.

Appellants have been granted a severance, and the assignments ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of error are both joint and several. The sum*384mons and сomplaint was served on James R. Lawrence on the 1st day of July, and, so far as he was concerned, the cause was ripe for judgment on the face of the sheriff’s return. The indorsements on the branch summons and complaint are in the following words and figures: “I hereby -deputize L. P. Carpenter to execute this writ, this June 27th, 1908. W. C. LeGrand, Sheriff.”

“Executed by leaving a copy of the within summons and comрlaint with F. M. Lawrence, one ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the defendants, at Jacksonvillе, Calhoun County, Ala., by L. P. Carpenter, S. D. S.”

Service 20 days previous to the return day of the court is essential to the validity of a judgment by default in the circuit court. — Code 1907, § 5346; Ivey v. Perry, 97 Ala. 583, 12 South. 65. The return of the sheriff in respect to the service on F. M. Lawrence, it will be observed, is without date, аnd it is therefore insufficient as a foundation for the judgment by default. Thе record must shoAV affirmatively that process was duly served the rеquired length of time before the default Avas taken. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“Nor. could this dеficiency be supplied by parol evidence. The return is thе act of the officer, and must be in Avriting, and complete in itself. It cannot rest partly in parol and partly in writing. When deficient, it may bе amended, but the amendment must be made by the officer under the direction of the court.” — Timberlake v. Brewer, 59 Ala. 108, 117; Eltzroth v. Voris, 74 Ind. 460.

The appellee contends that, as the date of the appointment by the sheriff of Carpenter as special deputy is indorsed on the summons and complaint (June 27, 1908), the presumption arises that the sendee was made on thаt day; and cites Wheat v. State, Minor, 199, in support of the contention. In that cаse the sheriff’s return Avas: “Received January ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍8th, 1822, and executed.” Thе court said that the return clearly signified that the no*385tice was еxecuted on the same day it was received. We do not dоubt that the court was correct in so holding. But here the return is madе by a deputy, and it is wholly disconnected from the endorsement аnd date of the appointment made by the sheriff. The casе is not in point. It cannot avail appellee anything that, on the motion to set aside the judgment for lack of proper service of the summons, the clerk was allowed to testify that рlaintiff’s counsel asked him more than 20 days before the court convened if the branch summons and complaint had b„een returnеd; and that he informed counsel that it had been, with the sheriff’s return thereon. Even if this evidence could be considered at any time сompetent (Timberlake v. Brewer, supra), it is the evidence of legal service which authorizes the default judgment, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and it must be made at the time of judgment entry or not at all. — Reinhart v. Lugo, 86 Cal. 395, 24 Pac. 1089, 21 Am. St. Rep. 52. We can see no escape from the conclusion that the judgment was improperly rendered as to F. M. Lawrence.

This necessitates a reversal of the judgment as to both appellants. — Hubbard v. Allen, 59 Ala. 283; Nasworthy v. Draper, 9 Tex. Civ. App. 650, 29 S. W. 557.

Reversed and remanded.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.