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Service by Publication - Default Judgment

Cochran v. Engelland, [Ms. 1180216, Jan. 10, 2020] __ So. 3d __ (Ala. 2020). A plurality of the Court (Mitchell, J.; Parker, C.J., and Wise and Stewart, JJ., concur; Bolin, Shaw, Bryan, Sellers and Mendheim, JJ., concur in the result) affirms the Calhoun Circuit Court’s order setting aside a $2 million default judgment.

“Rule 4.3(d) requires a plaintiff seeking to effect service by publication to submit an affidavit to the trial court ‘averring facts showing avoidance,’ and Rule 4.3(c) reiterates that this affidavit ‘must aver specific facts of avoidance’ (emphasis added) and cautions that ‘[t]he mere fact of failure of service is not sufficient evidence of avoidance.’” Ms. *10. The affidavit upon which service by publication was made and upon which the default judgment was ultimately founded “contained only a conclusory statement that ‘[u]nder information and belief, [Pilar] avoided service.’ That statement does not meet the requirements of Rule 4.3, and Alabama appellate courts have universally held similar statements to be an insufficient basis upon which to request service by publication.” Ms. *10-11.

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