Robinson v. Reid's , 50 Ala. 69 ( 1873 )

B. F. SAFFOLD, J.

Tbe purpose of tbe bill was to enjoin execution on a judgment at law, recovered by the appellee against tbe appellant. Tbe alleged grounds of relief are, that tbe note which was tbe foundation of tbe suit bad been paid, and that tbe complainant, a joint obligor, bad not been served with process. The record of tbe suit at law is not set out. Tbe judgment was rendered in September, 1866, against tbe complainant alone, by nil dicit. The original papers of tbe cause bad been destroyed, and those substituted are alleged not to contain any evidence of service of process on tbe said complainant. His co-obligor was served, and employed counsel to defend. But he died in 1864, and tbe suit was abated as to him. Tbe note was for one hundred and twenty-five dollars, in consideration of tbe hire of two slaves in 1860.

In proof of tbe non-execution of tbe summons, the complainant, as a witness in his own behalf, testified that be bad no recollection of ever having been served with notice of tbe suit; and that tbe presentation of tbe execution by tbe sheriff was tbe first information given to him. He bad withdrawn from tbe contract with bis co-obligor, Lucius Williams, which induced tbe hiring of tbe slaves, and Williams had agreed with him to assume that obligation. Tbis latter agreement may have caused him to forget tbe service of process, but it in equal measure conduced to tbe belief that be did not defend tbe suit. His inability to recollect whether notice was given or not, is not sufficient to prove a want of notice, but bis testimony altogether on this point may be regarded as a positive denial of tbe service. It is such as would be much aided by clear proof of a valid defence.

If the record of tbe suit at law should prove tbe allegation of the bill, that no evidence of service of process on tbe complainant is given therein, it would materially aid his evidence without prejudicing his cause. He was not obliged to take an appeal, instead of resorting to equity. He states in his bill a case for equitable interference, independent of a mere reversible error. Givens v. Tidmore, 8 Ala. 745.

The non-execution of the process is not alone a sufficient reason for enjoining the judgment. A valid defence must also be shown. Secor v. Woodward, 8 Ala. 500. The evidence in respect to the payment is conflicting, and lacks positiveness. There is a credit on the note of $6^¶. The only witness to disprove the payment, a son of the payee, says that ten or fifteen bushels of corn were received from Williams, and besides that he knows of no other payment. Two young sons of Williams, scarcely old enough at the date of the transactions to have been well informed about them, say that their father paid corn to the creditor, Reid, once in each of the years 1860 and 1861. One of them said he had paid as much as one hundred- and fifty bushels. Mrs. Williams testified, that Williams hired the same slaves of Reid two years, and that he paid for them, but neglected to take up the note. Her testimony, as well as that of the sons of Williams, is sadly mixed up with what they heard from him. But the impression made upon us is, that much more of the note was paid than is credited upon it, if it was not satisfied. Perhaps, on another hearing, the evidence may be more satisfactory.

The decree is reversed, and the cause remanded.