Raisin Fertilizer Co. v. McKenna , 114 Ala. 274 ( 1896 )

HARALSON, J. —

The bill avers, that “no summons and complaint were ever served on him [the complainant and appellee], notifying him that any suit was pending against him, so that he could appear and defend against it. Although the sheriff’s return on the back of the summons and complaint shows it was executed, yet in fact it was not.”

So far as the bill is dependent on the averment of a lack of service or notice before judgment rendered against complainant, and the lack of opportunity to correct it at the term of the court at which it was rendered, its allegations are full and sufficient.

Such a bill must aver, however, both a want of service and a good defense. — Dunklin v. Wilson, 64 Ala. 162; Rice v. Tobias, 83 Ala. 348.

As to the statement of facts showing a good defense, the bill avers in substance, that the note in suit was given to J. B. Harper, a merchant doing business at the time in Geneva, Alabama, to procure an advance of supplies to complainant during the year, and to secure its payment, he gave Harper a mortgage on personal property ; that complainant procured advances on the note and. mortgage during the year, but in the Fall he paid Harper for them; that he did not take up the papers, because Harper said they were misplaced or lost, that complainant never heard anything more of said note, until a few days after the Spring term of the circuit court of Geneva county, 1892, when he was told that the appellant, The Raisin Fertilizer Co., had obtained a judgment against him “ on the J. B. Harper note.” In this connection, the averment is made that the complainant “ had a good defense against the note, as he had paid it, and would plead and prove it, had he been notified.” By these averments it is shown, that the complainant had a good defense to the note, which he was prevented, by a lack of service of the summons and complaint, from making. No negligence or lack of diligence is shown, or can be inferred against him, in these averments. The demurrer, so far as it questions, on the averments of the bill, the want of a good defense to the action at law on said note, and the want of an opportunity to interpose it, was without merit, and properly overruled. The other grounds of demurrer question the equity of the bill, on account of the alleged laches of complainant in filing it. He delayed doing so a little over three years, but during that time, he had been undisturbed by execution on the judgment, and no steps had been taken to enforce the mortgage given on personal property to secure the note. The delay was not such as to bar relief in equity against the judgment. — Grier v. Campbell, 21 Ala. 328.

On the trial of the cause, the complainant, by his own testimony, fully proves the lack of service and the payment of the note to Harper, its payee, and his ignorance of any claim the appellant had to the. note, and of the judgment against him, until after the adjournment of the term of the court, at which it was rendered. The witnesses, Henry and Angus Vaughan, examined by complainant, fully corroborate his testimony, that the summons and complaint were never served on the complainant.

The appellant did not examine said J. B. Harper, or offer any evidence to show that said-note was not paid. Its payment was averred and proved by complainant. The only evidence it offered was that of the sheriff, Castellow, by whom the service, on its face, purported to be executed, and his evidence was directed alone to proof of service. It is sufficient to say of his testimony, that it was weak, inconclusive and entirely insufficient to overcome the evidence introduced by complainant.

The decree of the court granting relief to complainant, perpetuating the injunction theretofore granted in the cause, and that the' said judgment in favor of appellant against complainant be held void, was free from error, and is affirmed. .

Affirmed.