Smothers v. Meridian Fertilizer Factory , 137 Ala. 166 ( 1902 )

TYSON, J.

This .appeal is prosecuted from an order of the chancellor dismissing a petition filed in vacation to reopen a decree rendered at a regular term, of the court held prior thereto, for the purpose of allowing the petitioners kv come in and defend the suit. It appears from the record in the cause that the petitioner M. C. Smothers was a non-resident of this State, and that publication was made as required by the statute, and that, his co-petitioner, M. A. Smothers, was a resident and that personal service was had upon hem Decrees pro oonfesso were regularly taken and entered against each of them. Upon the decrees pro oonfesso and testimony regularly taken, upon submission the court rendered the decree sought to be reopened. In short, the procedings throughout were regular and the decree rendered was in conformity to the statute. — §• 759 of Code.

As to the respondent M. O. Smothers, who, as we have said, was shown by the bill and other papers in the cause, to be a non-resident, the decree, by force of the statutes (§§ 753-4), does not become absolute until after the expiration of twelve months from the date of its rendition and he, upon' petition filed within the time, prescribed, showing sufficient cause, has the right to have it set-aside and be let in to defend the suit upon the merits. As to the respondent M. A. Smothers, she having had personal notice, the provisions of the statutes clearly have no application.

The theory upon which the petition is sought to be sustained in behalf of M. C. Smothers and "the only one insisted upon here, is that he was, at the time of the filing of the bill, merely temporarily absent from the State — that he had not become a non-resident but was a resident of this State and, therefore, he should have been personally served. Conceding that these facts are sufficiently averred in the petition and conceding the truth of them, this is clearly not cause within the meaning of the statutes, and does not entitle him. to the benefits conferred by them, if it be conceded also that the petition shows that he has a meritorious defense. — Tabor v. Lorance, 53 Ala. 543.

Again, conceding for the purpose of this discussion, that the averments of the petition fail to show that the petitioner was entitled to notice of the filing of the bill by personal service and, therefore, the; service by publication was proper, and that he would be entitled in tlais respect, to invoke the remedy provided in the statutes, and further conceding that the averments of the petition show that he had a meritorious defense to the bill, which of course must -be alleged (Lehman v. Collins, 69 Ala. 127), its dismissal, at the hearing upon the evidence submitted, which wholly supported the denials, and averments of the, answer, was proper. For there was no proof of the truth of the controverted facts alleged in the petition. It is true, it purports to be verified. But the verification amounts to no verification at all. — Burgess v. Martin, 111 Ala. 656; Pollard v. So. Fertilizer Co., 122 Ala. 409; Schilcer v. Brock, 124 Ala. 626.

So then whether we construe the averments of the petition as showing that M. C. Smothers was a resident of this State fin'd, therefore, entitled to personal service, or that he was a non-resident, its dismissal was proper.

Affirmed.