Aetna Casualty & Surety Co. v. McIntyre
Aetna Casualty & Surety Co. v. McIntyre
Opinion of the Court
This is an appeal by Aetna Casualty & Surety Company (“Aetna”) from a judgment entered in favor of Frank McIntyre and Rhonda McIntyre. The appeal is from that portion of the judgment in favor of Frank, who is divorced from Rhonda and who failed to appear on the trial date. Aetna alleged that the McIntyres had breached a contract by failing to pay for damage they allegedly caused to property leased to them by Aetna’s insureds. A statement of the facts in this case is unnecessary, because the only issue raised on appeal is whether the trial court erred in failing to enter a default judgment against Frank McIntyre for his failure to appear at the trial.
The record reveals that the complaint was served on Rhonda McIntyre on November 4, 1987. There is no evidence in the record that a copy of the complaint was served on Frank; nevertheless, on December 4, 1987, Frank’s attorney filed a motion for change of venue from Mobile County, where the complaint was filed. While the motion requested a venue change to Clarke County, the supporting affidavit, filed January 4,1988, stated that Frank and Rhonda resided in Washington County. The motion for change of venue was granted; however, the case was transferred to Washington County instead of to Clarke County. Although Frank’s attorney made filings in Clarke County, these filings were transferred to Washington County. One of these filings was Frank’s general denial in answer to the complaint. On February 10, 1988, Frank’s attorney filed in Clarke County a motion to withdraw as Frank’s attorney. This motion was received in Washington County on May 20, 1988, and was granted on June 7, 1988. The case
In contending that the trial court erred, Aetna cites Roberts v. Wettlin, 431 So.2d 524 (Ala. 1983), and Gray v. Handy, 204 Ala. 559, 86 So. 548 (1920), for the proposition that if a defendant knows of a trial date, yet fails to appear, then the court must enter a default judgment against him. Gray v. Handy, supra, however, makes it clear that Aetna would be entitled to a default judgment only “[upon] the proof of the amount of damages,” 204 Ala. at 560, 86 So. at 549. In this case, the judge evidently was of the opinion that Aetna failed to prove those damages.
We have reviewed the record and find that Aetna has offered no more than an assumption that the damage to the house leased by the McIntyres was caused by a grease fire.
Aetna failed to show liability on the part of Frank. Therefore, the judgment in his favor is due to be, and it hereby is, affirmed.
AFFIRMED.
. The trial court found no evidence that the damage was caused by a grease fire. That finding has not been challenged on appeal.
Reference
- Full Case Name
- AETNA CASUALTY & SURETY COMPANY v. Frank McINTYRE and Rhonda McIntyre
- Cited By
- 3 cases
- Status
- Published