Paul v. Malone & Collins , 87 Ala. 544 ( 1888 )

McCLELLAN, J. —

Tbe defendant below, appellant bere, moved tbe court to set aside tbe return, of tbe sheriff showing tbe service of a copy of tbe complaint on him. An issue of fact was made up on this motion, and submitted to tbe court; and tbe refusal of tbe court to vacate tbe return on tbe evidence introduced, constitutes tbe only matter now assigned as. error.

Tbe return of tbe sheriff imports verity, and tbe burden of proving it to be false rests on the party assailing it, and must be discharged by evidence sufficient to overcome tbe presumption arising from tbe fact that it was made in tbe line of bis duty by a sworn officer. — Dunklin v. Wilson, 64 Ala. 162.

Tbe bill of exceptions in this case recites: “In support of said motion, defendant introduced himself as a witness, and bis testimony tended to show that tbe summons and complaint were never served on Mm,” &c.; and that this was “all tbe evidence in tbe cause.” Construing these statements of tbe evidence most strongly against tbe appellant, as tbe rule requires — 3 Brick. Dig. p. 81, § 51 — it appears that there was only a tendency of tbe evidence to establish certain facts. In cases like this, where this court is required to pass on tbe sufficiency of tbe evidence to support the conclusion of fact reached by tbe court below, it will not suffice to state tbe mere tendency of tbe evidence. It can not be assumed that this mere tendency was sufficiently strong to overturn tbe presumption of tbe verity of tbe officer’s return, and to reasonably satisfy tbe mind of the court that there had been no service of process. And, upon this ground, though it might be justified also on others, the judgment of the Circuit Court will be

Affirmed.