Opinion
Civ. 97.
November 29, 1972.
Appeal from the Circuit Court, Mobile County, Hubert P. Robertson, J.
Feibelman Silver, Mobile, for petitioner.
Although petition may show the defendant was prevented from making his defense by surprise, accident, mistake or fraud; yet if it fails to show he was so prevented without fault on his part, it discloses no right to obtain a rehearing. Kirkland v. C. D. Franke Co., 207 Ala. 377, 92 So. 472; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Gray v. Handy, 204 Ala. 559, 86 So. 542. There is a strong presumption in support of the correctness of the sheriff's return, and the party challenging it has the burden of establishing lack of service by clear and convincing proof. Howard v. Drinkard, 261 Ala. 555, 74 So.2d 704. The return will not be invalidated upon the uncorroborated statement of the party denying service. Edison v. McDaniel, 216 Ala. 610, 114 So. 204; King v. Dent, 208 Ala. 78, 93 So. 823.
Moore, Moore, Downing Layden, Mobile, for respondents.
When a party has been deprived from making his defense by surprise, accident, mistake or fraud, without fault on his part, he may, in like manner, apply for a rehearing at any time within four months from the rendition of the judgment. Code of Alabama, 1940, Recompiled in 1958, Title 7, Section 279. Finding of trial court, as to service of summons and complaint on conflicting evidence, on motion to have judgment set aside under this Section (Title 7, Section 279) has the force of a verdict of a jury. Gray v. Handy, 204 Ala. 559, 86 So. 548; Craft v. Hirsh, 227 Ala. 257, 149 So. 683; Barton v. Burton Mfg. Co., 202 Ala. 180, 79 So. 664; Melvin v. Clark, 45 Ala. 285; Burt v. Fraser, 157 Ala. 574, 47 So. 572.
This is an original petition for writ of mandamus for an order directing the Judge of the Circuit Court of Mobile County to deny a motion to set aside a default judgment, etc.
A detailed recitation of the facts as revealed by the pleadings and briefs are not necessary to this opinion.
The pertinent facts are that a default judgment was taken against one John W. Pemberton. Thereafter, a motion to set aside the default judgment under Tit. 7, § 279, Code of Alabama 1940, as amended, (commonly referred to as the Four Month Statute) was filed and granted.
From the relief granted under Tit. 7, § 279, petitioner filed the writ now before this court.
It is clear from the record that oral testimony from two witnesses was taken before the trial court. It is equally clear that this testimony was not transcribed and is not before us as part of the record. It is further readily apparent that the trial court's conclusions were based in part from the aforementioned oral testimony.
The answer of the trial court in this proceeding in pertinent part is as follows:
" From all the evidence, both oral and written, including the Record as appears in this case, it was my opinion that the Defendant, John W. Pemberton, had been prevented from making his defense by surprise, accident, or fraud without fault on his part; that he had a valid defense to the action, and in accordance therewith, I set aside the default judgment, and reinstated the cause on the trial docket." (Emphasis added.)
The decisions of the Supreme Court of Alabama are uniform to the effect that conclusions or findings on the facts of the chancellor or trial judge will not be reviewed when it affirmatively appears there was evidence before the court which is not set out in the record. Modern Credit Co. v. State, 265 Ala. 248, 90 So.2d 756; Wood v. Wood, 119 Ala. 183, 24 So. 841; Compton v. Compton, 235 Ala. 174, 177 So. 900; Patton v. Endowment Dept. of A. F. A. M. of Ala., 232 Ala. 236, 167 So. 323; Gipson v. Hicks, 243 Ala. 617, 11 So.2d 461. See also Ala.Dig., Appeal and Error, 695.
In a mandamus proceeding, the appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment appealed from, and the appellant (petitioner) must overcome this presumption by satisfactorily countervailing evidence. Chestang v. Burns, 258 Ala. 587, 64 So.2d 65; Ex parte State ex rel. Denson, 248 Ala. 161, 26 So.2d 563; Ex parte Waldrop, 228 Ala. 38, 152 So. 44; Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856.
Here, in this instance, certain evidence is omitted from the record which the trial court considered in reaching its conclusion. The law in Alabama is that it is presumed that the omitted evidence justified the adjudication of the court on the various issues of fact presented. Gipson v. Hicks, supra; Wood v. Wood, supra; Ala.Dig., Appeal and Error, 907(4).
This court is mindful that the above rules of law may work a hardship in some instances, but it cannot be otherwise. For this court to issue mandamus there must be credible allegation, ironclad in nature, showing that the respondent (trial judge) is by law bound to do no other than that which is sought to be commanded. Ex parte Argo, 42 Ala. App. 546, 171 So.2d 259.
In view of the above we have no alternative other than to deny the writ.
Petition for writ denied.
WRIGHT, P. J., and BRADLEY, J., concur.