Morgan v. Robertson

39 So. 2d 9, 251 Ala. 583, 1949 Ala. LEXIS 34

• Court: Supreme Court of Alabama
• Decided: February 17, 1949
• Docket: 7 Div. 992.
• Status: Published

Opinion

BROWN, Justice.

This is a proceeding under §§ 279, 280, Title 7, Code of 1940, for supersedeas and the vacation of judgment by default rendered against the petitioner on the ground that he was prevented from making his defense by surprise, accident, mistake or fraud, without fault on his part.

The issues presented by the petition for supersedeas were contested and the case was submitted on the pleadings and the testimony taken ore tenus. The petition was denied. This appeal is from the judgment denying the petition.

The evidence adduced clearly warranted the conclusion that the petitioner failed to meet the burden of proof by showing that said judgment was entered without fault or negligence on his part. Ex parte New Home Sewing Machine Co., 238 Ala. 159, 189 So. 874; Southern Railway Co. v. Cleveland, 163 Ala. 470, 50 So. 122; Ex parte Walker, 54 Ala. 577; Traub v. Fabian, 160 Ala. 210, 49 So. 240; Evans v. Wilhite, 167 Ala. 587, 52 So. 845, 846; Todd v. Leslie, 171 Ala. 624, 55 So. 174.

We find no error in the record.

Affirmed.

FOSTER, LAWSON and STAKELY, JJ., concur.