Holland-Blow Stave Co. v. Whitman , 210 Ala. 108 ( 1923 )

It is unquestionably the law that in order to render a valid judgment against a garnishee he must not only have been served with the writ of garnishment, but, when there has been a conditional judgment for failure to answer the writ, he must also be served with notice before the conditional judgment is made absolute. Section 4324 of the Code of 1907; Lowry v. Clements, 9 Ala. 422; Goode v. Holcombe, 37 Ala. 94.

When a judgment has been rendered without compliance with the foregoing requirements, a court of equity has the power to set aside such judgment upon proof by the complainant that he was not served with notice and that he has a meritorious defense. It is well settled, however, that while want of notice is negative in character, the burden of proof is on the complainant to show that he was not in fact served. The return of the officer bears a certain degree of solemnity and is prima facie evidence of the recital thereof, and testimony of the officer will not as a rule be overturned by the mere denial of the complainant that he was served, unaccompanied with such facts or circumstances that leave his evidence merely negative. King v. Dent, 208 Ala. 78, 93 So. 823; Dunklin v. Wilson,64 Ala. 162. As stated in the opinion in this last case:

"Neither witness states any fact or circumstance, in aid of his testimony, that was calculated to impress its date on their memories. * * * In the absence of some attending circumstance to fix the attention, associated in the memory with the transaction itself, there is no subject on which human recollection is more frequently at fault, than the particular date of past occurrences."

In this case, however, there are elements which make the denial of Gibson more than mere negative evidence. He not only testifies that he was not served with notice as to the conditional judgment, but after refreshing his memory with a memoranda, which he knew to be correct when made, swore that he was in Birmingham at the time as his expense account kept for a period covering months discloses charges paid for meals and railroad fare on said day. The evidence of Gibson, as well as the memoranda, were admitted in evidence. "The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum." Singleton v. Doe ex dem. Smith, 184 Ala. 199, 63 So. 949. The trial court erred in not granting the complainant the relief sought, and the decree of the circuit court is reversed, and the cause is remanded in order that the trial court may make the proper orders and directions as to canceling the judgment in question.

Reversed and remanded.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.

On Rehearing.