Summary
affirming the denial of a motion under Rule 60(b) challenging a judgment as void for lack of personal jurisdiction because the record was silent as to the facts and allegations supporting the appellant's arguments
Summary of this case from Campbell v. TaylorOpinion
2940368.
June 9, 1995. Rehearing Denied July 14, 1995. Certiorari Denied November 9, 1995 Alabama Supreme Court 1941643.
Appeal from Jefferson Circuit Court (CV-93-3101); Roger Monroe, Judge.
William F. Smith II, Birmingham, for Appellant.
Daniel Patrick Lehane, Birmingham, for Appellee.
In April 1993 Sally Davis Palm filed a personal injury action against Lawson Pruitt, alleging that she had sustained injuries due to Pruitt's negligent and/or wanton operation of his motor vehicle.
Palm attempted service on Pruitt by certified mail. The certified mail receipt was returned unsigned. An alias summons and complaint was subsequently issued by certified mail to the same address. The receipt was signed by Pruitt's sister. Service was allegedly perfected on June 9, 1993.
In September 1993 Palm requested that the trial court grant a default judgment in her favor. In December 1993 a default judgment in the amount of $25,000 was entered in favor of Palm.
In October 1994 Pruitt filed a motion for relief from judgment, pursuant to Rule 60(b)(1), (3), (4), and (6), Ala.R.Civ.P. Following a hearing on the motion, the trial court denied the motion, but reduced the damages from $25,000 to $2,500.
Pruitt appeals and asserts that the trial court's "default judgment was void due to a lack of in personam jurisdiction." He further insists that the trial court "abused its discretion by failing to set aside the default judgment on the basis of fraud and by modifying the judgment amount."
In presenting his arguments, Pruitt has stated facts and allegations that are not in the record before us, as we have only the clerk's record of the pleadings and the rulings of the court. There is no record of a hearing on the motion. This court cannot determine whether the trial court may have abused its discretion in the absence of opportunity to examine the evidence presented to that court. Under such circumstances, we are bound to presume that there was evidence to support the trial court's order. McCarroll v. McCarroll, 618 So.2d 1355 (Ala.Civ.App. 1992).
We find no basis in the record for our consideration of the issues presented. The judgment is affirmed.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.
AFFIRMED.
ROBERTSON, P.J., and THIGPEN, YATES, and CRAWLEY, JJ., concur.
MONROE, J., recused.