McDonald v. Cawhorn

McDonald v. Cawhorn. Bill to Cancel Judgement for Want of Service. (Decided June 13, 1907. .44 South. 395.) 1. Judgment; Cancellation; Service of Process. — In a bill to cancel judgment for want of process, where the issue was whether the service was had in this'or another state, the burden is on complainant to show that the service was had in another state; and in this case the evidence is stated and examined and held insufficient to carry the burden. 2. Same; Grounds; Ignorance of Suit. — Equity will cancel a judgment and enjoin a sale under execution thereon where complainant (defendant in the suit) shows that he had no notice or knowledge of the suit, and that he has a meritorious defense; but it is not sufficient that the service of process was merely irregular or not in strict compliance with the statute, such objection being available only in the court awarding the judgment, or on appeal to this court. 3. Same. — Evidence in this ease examined and held to show that complainant (defendant in the suit sought to be cancelled) knew of its pendency and that she was. a party defendant thereto. Appeal from Lauderdale Chancery Court. Heard before Hon. W. H. Simpson. Bill by Lydia McDonald against W. W. Cawhorn, as administrator of Betsie McOlusliey. From a decree for defendant, complainant appeals. Affirmed. The hill alleges that a judgment by default was rendered against complainant and her husband, F. S. Me-Donald, on a note, in the sum of $638.97 and costs, and that execution had issued on it and had been levied upon lands therein described; that the property so levied on has been advertised for sale in satisfaction of the execution, etc. The defense which complainant alleges she has to the judgment and the note upon which it is founded is that the note was executed by her husband, that no part of the consideration moved to her, and that some months after the note was executed she signed the same as surety for her husband. Upon this is based the allegation that the note is void, and the judgment obtained thereon as against her is also void. It is alleged that no notice of the filing of the suit was ever served on her, either by publication or otherwise, and that the court was without jurisdiction to hear and determine the cause. The proof showed a service of process upon the defendants in the suit, and the issue in dispute Avas whether it was in Tennessee or Alabama. John T. Ashcraft, for appellant.- The jurisdiction in personam of the courts of the state or county is confined to persons within its territorial limit, and service of process beyond such limits is ineffectual to 'confer such jurisdiction. — Ward v. Boyce. 152 N. Y. 191; Max-ican Ry. Go. v. Pinckney, 149 U. S. 194. The summons must be executed in accordance Avith the statute — Section 3273, Code 1896. Equity will relieve against judgment purporting to have been rendered by default where the allegations and proof shoAV that defendant was not served with process and has a good and meritorious defense.- — Dunklin v. Wilson, 64 Ala. 162; Rice v. Tobias, 89 Ala. 214. Under the allegations of the bill, the complainant had a meritorious defense. — Vincent v. Walker, 93 Ala. 165; Harden v. Darwin, 77 Ala. 472; R.ussell v. Peevey, 131 Ala. 567. George P. Jones, for appellee. Tbe burden of proving that tbe service was made in another state is upon tbe complainant. — Dunklm v. Wilson, 64 Ala. 162. Tbe service was sufficient. — 113 Ala. 626. Before tbe complainant was entitled to relief it must appear that she bad no notice or knowledge of tbe suit and bad a meritorious defense. — Dunklm v. Wilson, supra. And this burden is upon tbe complainant. — 96 Ala. 269; 110 Ala. 487. [MAJORITY — ANDERSON, J.] ANDERSON, J. Tbe burden of proof was upon tbe complainant to show that the process was served in Tennessee; but as to what would be tbe result, if this fact was satisfactorily established, we need not determine, as we do not think she has successfully proven that tbe dining room in which tbe paper was left was not in Alabama. All tbe witnesses agree that tbe bouse is on or near tbe state line, while tbe sheriff, a disinterested witness, testifies that tbe dining room is in Alabama, and the only evidence to tbe contrary is that of tbe complainant and her husband, who- are both interested and Avho could have doubtless proven tbe location of tbe room in Tennessee by disinterested witnesses, if such is tbe case. Assuming, therefore, that the judgment was not void, tbe next inquiries are: Did the complainant have notice or knowledge of tbe suit against her? and has she a meritorious defense? If she proves that she bad no notice or knowledge of tbe suit, and that she has a meritorious defense, a court of equity will cancel tbe judgment and enjoin a sale under an execution issued thereupon.— Dunklin v. Wilson, 64 Ala. 162; Freeman on Judgments, §§ 495-498; Rice & Wilson v. Tobias, 89 Ala. 214, 7 South. 765, reported also in 83 Ala. 348, 3 South. 670. It is not sufficient that tbe service of tbe process was merely irregular, or not in strict compliance with tbe statute, to render the judgment subject to collateral attack. It is sufficient, to defeat a cancellation thereof, if the complaining party had notice or knowledge of the suit, and any objection to form or sufficiency was available only in the court which gave it or by a direct appeal. — Freeman on Judgments, § 126, and note. In the case of Rice & Wilson v. Tobias, 89 Ala. 214, 7 South. 765, the complainant was given relief, as the proof showed he was not served with process and had no notice or knowledge of the suit, and that he had a meritorious defense. In the case at bar the summons was laid on the table for the complainant and in her presence. The husband was handed the one for him at the gate, which he read. The husband also admits going to Florence to see about the suit, and that he discussed the purpose of his visit with his wife, but claims that he did not inform her that she was being sued also. We think that the complainant has not only failed to show want of notice or knowledge of the suit, but that the facts and circumstances fully warrant us in holding that she knew of the pendency of the suit and that she was a party defendant. The decree of the chancery court is affirmed. Tyson, C. J., and Dowdell and McClellan, JJ., concur.