Colley v. Spivey

127 Ala. 109

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

DOWDELL, J.

After judgment by default against the appellant in tlie court below, lie made a motion to set it aside on tlie ground that lie had not been served by the sheriff with a copy of the summons and complaint. The return of tlie sheriff endorsed upon the summons and complaint Avas as follows: “Executed by serving a copy on the Avithin named defendant, except as stated beloAV. Sept. 27th, 1898.” Signed, “S. M. Reeves, sheriff of Pike Oo., Ala.” Nothing appears “as stated beloAV,” but the official signature of the sheriff. This Avas a sufficient return by the officer showing an execution of the writ. The words “except as stated beloAV,” there being nothing stated below, can be treated only as surplusage.

The motion to set aside the judgment by default, Avas addressed to the sound discretion of the court, and is not'therefore subject to revision on appeal. “The action of a nisi prius court setting aside or refusing to set aside a judgment by default will not support an appeal to this court. Such orders are not within the statute which requires us to revise the action of lower courts on motion for new trials, and in the absence of statutory provision cannot be considered by us.” — Ledbetter & Co. v. Vinton, 108 Ala. 644; Allen v. Lathrop-Hatton Co., 90 Ala. 490; Truss v. Birmingham, LaG. & M. R. R. Co., 96 Ala. 316.

There is no error in the record, and the judgment of the court beloAV must be affirmed.