Legal Question in Personal Injury in Alabama

certificate of service

The attorney for the defendant filed a motion to continue. His certificate of service was dated 7/1/02, yet his mail meter shows it mailed 7/3/02. It did not reach me or the court until the day before court. We were still on the docket. He did not show and the Judge rulled in favor of me by default. Now his attorney has filed a motion to set aside default. Would it be a strong argument to say the attorney failed to act in a timely manner. This is small claims court and I have no attorney.


Asked on 7/17/02, 1:51 pm

1 Answer from Attorneys
Jon Lewis Lewis, Feldman, & Lehane, LLC

Re: certificate of service

Alabama law does not favor defaults, and the judge is likely to set it aside, but it is the judge's discretion. You should argue that you were in court and ready to go, and your having to continue to come to court costs you time and money. Frankly, even if the judge leaves the default in place, the attorney can appeal to Circuit Court de novo (which means the whole case starts over without regard to what happened in small claims court).

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Answered on 7/18/02, 9:58 am


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