155 S.E. 237 | S.C. | 1930
October 9, 1930. The opinion of the Court was delivered by The appellant, as plaintiff, sued the respondent, as defendant, in the Court of Common Pleas for Berkeley County. The respondent answered the complaint within due time. The case was placed on the calendar for trial, where it remained, being continued several terms by consent of counsel. In the meantime, there was a change of counsel on the part of the respondent, and certain negotiations for a settlement.
On December 4, 1928, in the absence of the respondent and his attorneys, the case was called for trial. The appellant offered evidence in behalf of the allegations of his complaint, and the presiding Judge directed a verdict in his favor.
Thereafter, and within one year from the date of the entry of judgment against him, the respondent moved before his Honor, Judge William H. Grimball, presiding in the Court of Common Pleas for Berkeley County, under the provisions of Section 437 of the Code of Civil Procedure, Vol. 1, Code of 1922, that the judgment be vacated. In favor of and against the granting of this motion, several affidavits were presented to the Court. After fully hearing the motion, the presiding Judge vacated the judgment, and provided in his order that the respondent should enter into proper bond in the sum of $800.00, conditioned for the payment of any judgment which might be secured against him at any future *62 trial of the case. From that order, the appeal comes to this Court.
Regarding motions for order of the character of the one here involved, under the provisions of Section 437 of the Code of Civil Procedure (Section 195 of the Code of 1902) this Court has laid down the following rule: "In McDanielv. Addison,
We are not convinced that the Circuit Judge committed any abuse of discretion in granting the order appealed from; and the duty to do that rests upon the appellant. Therefore, the order should be, and is, affirmed.
MESSRS. JUSTICES COTHRAN, STABLER and CARTER concur.
MR. CHIEF JUSTICE WATTS did not participate.