Opinion
7 Div. 581.
June 18, 1925.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Culli, Hunt Culli, of Gadsden, for appellant.
The return of the sheriff did not show service on defendant. Morrow v. Norvell-Shapleigh Hdw. Co., 165 Ala. 332, 51 So. 766. Defendant was justified in relying on her attorney to represent her in the case, and failure of such attorney in the premises constituted ground for setting aside the judgment by default.
Dortch, Allen Dortch, of Gadsden, for appellee.
No appeal lies from an order overruling motion to set aside a default judgment, and such action by the trial court will not be reviewed in any proceeding, unless for abuse of discretion. Wilkins v. Windham, 197 Ala. 510, 73 So. 29; Ex parte John F. Byers Mach. Co., 18 Ala. App. 78, 89 So. 88; Ex parte Doak, 188 Ala. 406, 66 So. 64; Eminent Household v. Lockerd, 202 Ala. 330,
80 So. 412; Kirkland v. C. D. Franke Co., 207 Ala. 377, 92 So. 472. Negligence of defendant's attorney is the negligence of defendant. McCord v. Harrison, Stringer, 207 Ala. 480, 93 So. 428; Hanby v. Phillips Buttorff, 12 Ala. App. 543, 68 So. 477. If properly raised in the lower court, the burden of showing that she had not been properly served was upon defendant. Gray v. Handy, 204 Ala. 559, 86 So. 548.
The judgment by default will support the appeal, but the ruling denying appellant's motion to set aside such judgment is not reviewable on said appeal. Ex parte Gay, 7 Div. 515 (W. O. W. v. Gay) ante, p. 5, 104 So. 898; Eminent Household v. Lockerd, 202 Ala. 330, 80 So. 412.
The ruling of the court in this respect is only reviewable as for an abuse of discretion; the appropriate remedy in the instant case being by mandamus. Eminent Household v. Lockerd, supra; Ex parte Doak, 188 Ala. 406, 66 So. 64; Ex parte Gay, supra. Petition to this effect is presented with the record on this appeal.
A sufficient outline of the evidence offered on the hearing of the motion appears in the statement of the case, and need not be here repeated. That on the part of defendant disclosed that counsel had been employed for a period of four months before the rendition of the judgment, and no pleadings filed nor appearance entered. While the affidavit of counsel states that since her employment she had been in "wretched condition" of health, yet it is not made to appear that notice to defendant could not have been given or defendant advised to employ other counsel. Defendant is to be held accountable for the neglect of her counsel, and indeed she was neglectful herself in failing to make any inquiry whatever. Ex parte Walker, 54 Ala. 577; Eminent Household v. Lockerd, supra; McCord v. Harrison, 207 Ala. 480, 93 So. 428; Kirkland v. Franke, 207 Ala. 377, 92 So. 472.
The affidavits offered by plaintiff as to the statements made by defendant, undenied, add confirmation to the view that defendant was entirely indifferent to the suit, and deliberately ignored it. There has very clearly been shown no abuse of discretion, and petitioner is not entitled to the writ of mandamus.
The fact that in the sheriff's return of service of process the name appears "Victory Brown" instead of Victoria Brown will not suffice for a reversal of the judgment by default. The name is followed by the further descriptive word "defendant," and that defendant was in fact duly served is without dispute. As said by this court in Morrow v. Hardware Co., 165 Ala. 331, 51 So. 766:
"The disposition of this court * * * has always been to indulge in no nice criticisms with respect to the words employed to express compliance with the prerequisites to an effectual service of this character of process."
We think the return here designates the defendant with reasonable certainty as to leave no substantial doubt as to identity, and is sufficient. Morrow v. Hardware Co., supra, and authorities therein cited; 32 Cyc. 50.
It results as our conclusion that the judgment appealed from will be affirmed, and the petition for mandamus denied.
Affirmed. Mandamus denied.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.