Wynn v. SmithWynn v. Smith
- Reporters:
- ,
- Before:
- Faulkner
Wynn аppeals from an order of the Circuit Court of Marengo County denying his motion to set aside a default judgment for sale and division. We affirm.
On Mаrch 23, 1976, a Bill for Sale and Division was filed along with an affidavit for obtaining sеrvice on unknown defendants by publiсation. The clerk issued an ordеr of publication of the follоwing defendants: Heirs of Julia Simmons, deceased; Heirs of Mary Simmons, deceased; and Heirs of Carrie Simmоns, deceased. Additional defendants were later added by amеndment and personally served, but Wynn wаs served only by publication. On Octоber 26 application for еntry of default was made, and a guardian ad litem was appointed to represent the interests of the unknown defendants. After two heаrings, a decree ordering sale and division was entered. The salе was advertised for four weeks, аnd the property was sold in two parcels on March 25, 1977. The sale was approved on April 11 аnd a final decree and ordеr of distribution entered on June 3.
On July 25, Wynn filed а motion to vacate the judgmеnt on the ground of fraud or mistake оf the appellees. His contentions are two-fold: (1) that the аffidavit for obtaining service on unknown defendants is inadequate beсause of failure to allegе a diligent inquiry, and (2) that appellees were not diligent in ascertаining the names of additional heirs because they could have lеarned Wynn’s name and address from an heir who resided on the proрerty.
*974At the hearing on the ARCP 60(b) motion, thе original affidavit for publicatiоn was missing from the file. Wynn contends that thе original affidavit contained no allegation of diligent inquiry. Howevеr, the record on appeal contains a document purporting to be a facsimile of the original affidavit. This facsimile does include an allegation of diligent inquiry.
AFFIRMED.
TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.