*1 contract with obligations cash and exception loan value not be may claimed certain be- policyholders fore December 1982. New South will remain in rehabili- tation, such assets as it can actions accumulating from officers, others, directors and other against sources. Such if be held an asset of the recovery, any, shall as reha- bilitator, subject direction of the court.
Section of the Cоde Laws South 38-5-1630 Insurance Carolina the Chief Com- (1976) gives rehabilitator, in deal- missioner, authority as broad insurance in re- companies insurance ing policies A rehabilitation include a may habilitation. plan provision' the loan and cash surrender a moratorium imposing upon as values of for such and to such extent may policies period be reason should why We find no rehabilitator necessary. not, assеts, as a moratorium impose sale part sold. The effect of certain which have been upon policies aof loan and cash this will be to continue the imposition of certain value limitation the rights policyholders, not later than De- until court, heretofore designated will be cember In all regards policyholders 1982. other benefits. entitled to full policy Graham, GRAHAM, Stevens, Sylvester Harney Gene Stevеns
Horace Todd, LORIS, Respondent. Appellants, Clifton OF TOWN (248 (2d) 594) E. S.
November 1978.
Per Curiam: circuit setting
This is from an order one judge appeal to aside granted appel- a summary judgment previously lants This vacated another circuit judge. 15-27-130 which S. C. Code provides, part, such terms that: “The in its discretion-and upon Court may, notice as at within one after year be time just, any may order, or a other thereof relieve from judgment, pro- party mistake, inadvertenсe, his taken him through ceeding against .” . . contend or excusable . surprise appellants does of sum- not vacation this Code Section permit further, and, that the vacation proceeding mary judgments circuit of matters readjudication by judge constituted another respondent by decided adversely previously affirm the vacation circuit We judge. disagree summary judgment. Loris, residents of the Town of brought
The appellants, town, ordinances which were suit have the zoning and void those ordinances null declared adopted contend- their respective properties. apply ordinances; Town, the zoning adopting ed that the prior *4 as after notice stat- required by hold hearings did not public thus, were encumbered and, their respective properties ute Town, to be heard. notice and an opportunity withоut herein, City Attorney, its through the answered Reaves, three defenses—a who general L. interposed John denial, laches and estoppel. See S. C. Code 5-23-4.0 § 1977,
On the April moved for appellants summary- before Honorable judgment Robinson Klyde with Judge Robinson that a on the matter be set ordering for hearing 28th. not at the April Reaves did scheduled appear hearing on the 28th and the was continued to the hearing follоwing day while the sheriff locate Reaves. The sher- attempted and, iff’s 29th, were futile on attempts April hearing held for with counsel the only appellants Based appearing. on the for Admissions which had pleadings, Request Reaves, served taken from depositions the appellants Clerk, and the Town Robinson the granted appellant’s the ordinances motion, declaring null and void as zoning the order dated applied property appellants by April Admissions, 1977. The which went un- Requests admitted, answered and were deemed and the deposition taken the Clerk that from Town disclosed the respondent the had not complied statutory enact- requirements taken ing zoning regulations. from the depositions ap- that, indicated pellants some of them had although applied Town, for and received none of building permits received notice enactment of the as regulations statute. The action of Rob- required by inson in summary justified by granting judgment record which he had before him. to the
Subsequent granting summary judgment, William V. entered the Josephs, case as Jr.
Town of Loris on 12th. May left having circuit, moved B. Josephs before Honorable Mor- James rison to have set summary aside under Code 15-27-130 contending had been taken the Town of Loris against excusable through and that Town had A meritorious defense. and, motion, was held of its support respondent pre- sented a letter from Reaves dated 26th and April received 27th, town officials on in which April Reaves resigned An from the Loris was attorney. Mayor affidavit city effect officials were unaware that city presented *5 a had been in scheduled the case and that offi- city cials had been contacted nevеr the sheriff when he was to locate Reaves. The attempting in his Mayor affidavit further stated that he had been the Town’s get attempting file in the case from since he Reaves had but was resigned unable obtain it until May 16th.
On the issue of it whether had a meritorious defense, submitted an respondent affidavit from the Town Clerk which stated two of the had appellants previously ap- for plied and were issued to the building permits pursuant zoning that, ordinances. affidavit also stated since numerous had been issued building permits zoning ordinances ten and public zoning hearings had been Further, held after notice thereof. public the Town Clerk averred that of the which was held in hearings, No- vember had been on the application zoning of the by one in the change action. The appellants present application denied, zoning change having suit was instituted him and the other Jan- uary attacking validity ordinances. zoning Based on above facts, uncontroverted Morrison found that the had established excusable it had no notice actual knowledge summary and was not judgment hearing represented by counsel at the hearing, attorney “having resigned. Relying primarily the evidence that the only appellant an immediate in- terest down the ordinances had striking zoning alrеady them as valid his actions in recognized obtaining permits a reclassification of his seeking that the property ordinances, was actively Town enforcing Morri- son found the made a facie prima showing He, defenses. equitable meritorious accordingly, granted motion and set aside the summary judg- ment. order, Morrison’s appel- from Judge
On this appeal which, our consideration three lants have listed questiоns brief, as follows: in their are stated or authority discretion Morrison have any Did *6 matters of to set aside an Order Summary Judgment upon Robinson? by Judge decided previously to aside sum- it Morrison set Was Judge (2) proper ex- Robinson based upon issued by Judge mary judgment was not that the defendant rep- cusable holding Robinson had counsel when previously resented by the attorney held that notice had ample given the. defendant ? it Morrison set aside sum- Was for Judge
(3)
proper
the premise
Robinson
by Judge
upon
issued
mary judgment
a
laches and
are
questions
that the defenses of
estoppel
ad-
had
decided
these
been previously
when
jury
questions
as a
law
versely by Judge
sitting
judge?
set
out
the appellant’s
first
Turning
brief, the
contend that
Morrison
of
and overruled the
erroneously
has
reviewed
order
that
15-27-130
circuit
conceding
another
While
judge.
§
aside,
set
claim that
to be
they
default judgments
permits
no
to a
which
summary
the section has
application
judgment,
merits,
the summary
on
adjudication
is an
judicata.
here is res
involved
merit. Code
15-27-130
are without
These contentions
of
such
limited to the vacation
default
If
judgments.
not
it
have easily
intention
could
been the
of the legislature
“default” before the word “judgment”.
inserted
word
indeed,
and,
it
this Court has applied
This
did not do
see, Amеrican
v.
situations,
Trust Co.
section
non-default
Bloom,
Dunton v.
C.
Excerpts over circuit granted judge issue authority the acts a colleague. C., Co.,
In Steele C. and A. Railroad C. 324 S. (1880), Court stated:
The Court of Common Pleas is a unity, although juris- diction is administered a number of who are, judges sense, some of the court. When one of these exponents judges makes a decision the merits of within upоn matter jurisdiction, his that is not merely personal opinion but a judge, Pleas, the Court of Common which exhausts the of the court power subject upon and must stand in the until reversed or set aside manner prescribed by law. There is no from one appeal Circuit Judge All another. are and have same equal dginity right to pronounce the of the court. One Circuit judgments the same state has facts, alter power change, or reverse a decision of a brother of the same judge Circuit.
At 329 (emphasis ours).
And, in Anderson v. Co., Toledo Scale 6 S. E. the (2d) Court stated: (1938),
The aof Court of competent jurisdiction, in which the in proceedings are and accord regular with law and the rules of solemn the adjudication of procedure, the law of that case, not to be ought lightly set aside. The Code provides the method which it by aside; bemay set but that method must be fоllowed. strictly
6 S. E. at 466 ours). (emphasis The manner law and in prescribed provided by Code aside a with which setting we are here con- cerned is embodied 15-27-130. The summary judg- ment in the case present was vacated to that sec- tion and does not a constitute review by circuit judge because, of decision of another as will be- be discussed low, the orders two involved were not made same “upon state of facts” and were directed to different determinations. As this in Dunton v. Court stated Harper, supra:
When a different circuit than that one who judge passed an order from which relief is under section 195 of sought motion, he
our Code of Procedure comes to hear such Civil is not its merits the order referred called to review on upon it a different Therefore, to. is not cir- accurately speaking, an cuit than that one who made order judge undertaking aside an another by vacate set order made circuit judge. is, the order is any The of law if vacated of theory 195, that, set if such had out section grounds grounds he to the circuit at the time presented judge passed order, he refused to so. S. E. at 154. would have do consider the
We now second question presented As we understand this appellants. question, Morrison’s conclusion challenge Judge that the was not counsel at the represented time on the Two reasons summary judgment. are advanced challenge. support is based on the first presented finding argument no- ample Robinson this contention is that this thrust of hearing. tice Morrison from precluded Judge by Judge finding on the excusable absence basing finding of first appellant’s This related Reaves at the hearing. find- Morrison’s interpret the appellants counsel the time without at legal ing as a readjudication of the summary judgment hearing matter ruled Robinson. by Judge previously contention is without merit for two reasons: (1)
This Morrison had different facts before Robinson and Judges each and distinct them and were they separate making *8 Robinson was unaware that Reaves determinations. Judge and, not taken obviously, as counsel could have had resigned Further, indicates, his order into as this fact consideration. with the only was concerned jurisdiction the which over respondent the court had whether service as matter of fact reason by found proper he of record. The attorney the respondent’s and notice hand, Morrison, on the other was whether by Judge inquiry
451 the and is respondent established excusable neglect pa- not tently issue determined readjudication any Robinson.
The second reason the advanced their contention that Morrison erred finding is was without representation there was no issued order Circuit Court Rule No. 7 Reaves as counsel. fail see that this We relieving omission is comfort to the Had rule been any appellant. complied there likely would attorney, have no need for this matter to be before the brought Court. It is very failure of Reaves to with this comply rule and of the right protect required the Town to institute the action to vacate present judg- ment.
While the has not appellant specifically excepted of excusable finding based absence counsel neglect an abuse of discretion on the of the trial judge, we part consider init of its close view relationship the other issues in the case. rule in this general is that jurisdiction the neg-
lect of the is attributаble to In attorney the client. Peek, Lee 203, 213, v. E.S. (2d) 353, 358 (1962), statement Simon following Flowers, E. S. C. 99 S. (1957), quoted with approval: a wide discretion is vested in
Although courts set aside or vacate because of judgments misconduct neglect, or inadvertence case, of counsel in the employed general rule is that the undoubtedly neglect attorney client, mistake, and that no inadvertence to an neglect attributable cаn be attorney successfully used relief, as a ground for unless it would have been excusable if attributable to client. The acts and omissions of the in such case are those of the client.
452 case, are not
However, under the facts we present the of inadvertence, or mistake of coun- merely considering neglect, sel. We concerned with a wilful and unilateral abandon- are is ment of the client counsel. There the authority rule is not to such a the proposition general applied rule ex- factual situation. This to the general exception Am. 737 at 46 pressed (2d), Judgments, Jur.
the language: following that an be may imputed rule negligence attorney’s his on that client and latter from relying prevent not neces- does
ground opening vacating in the of the abandonment or sarily attorney’s event prevail withdrawal from the case. Annоt, see
Also
Under the brief, last in their question that the issue of and laches were be- argue estoppel fore Judge and were decided to adversely Thus, him. it is claimed Mor- respondent by that Judge rison, in had made facie holding respondent prima of the defenses of laches showing readjudi- and estoppel, cated issues decided This Robinson. contention Judge without merit for the reasons Mor- аlready discussed. Judge rison did not but readjudicate issues decided previously made a determination 15-27-130 based § a different state facts. Morrison that a finding meritorious
defense existed does not constitute an of dis- abuse A cretion. meritorious defense need not be perfect
nor can be guaranteed prevail which at a trial. It need be one which is of a worthy or only judicial it raises because law inquiry of some deserving discussion or a real and controversy investigation essential facts arising conflicting doubtful evidence. 46 Am. (2d) Judgments, Jur. their argument under appellants, this question, that it
also contend was for Morri- improper son consider the additional facts presented a meritorious defense to show since the additional does not meet the test evidence con- presented required sideration of after-discovered evidence. The answer to this contention is that has not sought open up on the basis of judgment after-discovered evidence but has, instead, on the theory proceeded judgment should be vacated because of its excusable which neglect, the ac- resulted it not able to contest fully being
tion before Robinson.
Affirmed. Lewis, C. J., Littlejohn, Gregory, Rhodes JJ., concur. J.,
Ness, dissents. Ness, : (dissenting) Justice I dissent. The course relief from a summary proper Further, to this Court. even if Code appeal Section 15-27-130 be invoked to may supplant I do not the facts of this case war- appellate process, believe ranted vacation the prior judgment. rendered summary by Judge
The order for he unan pleadings, Robinson after reviewed depositions, admissions, and affidavits. Virtually swered requests *11 to of the alle sustain any was evidence rebutting presented answer. The following language gations 420, 417, 211 v. 263 S. C. S. E. Conran Yager, Robinson’s order of 228, indicates Judge 229 (1975), was clearly summary judgment proper: files solely relies pleadings, “Where the appellant no makes factual showing op- and counter-affidavits, court the lower to a motion for summary judgment, position if, rule, this to summary judgment, under grant required he entitled was by under facts presented respondent, to as a matter of law.” case, on merits of the Robinson’s
As a decision and reversed by order have unless until should prevailed I the method re- by cannot sanction employed Court. orderly to circumvent appeal. spondent process of the circuit is vital yet authority judges individual equal an To system. litigants “appeal” to our state court permit one circuit another would decision from judge adverse Our and judge prior unending litigation shopping. promote chaotic system that no such have established decisions justice was envisioned our trial by structure. In judge Steele Co., Railroad 324, the Court (1880), stated:
“There is no from one appeal Circuit to another. judge All are of equal dignity have the same right pro- nounce the judgments court. One Circuit judge upon the same facts, state of has no power alter or change, reverse a deсision of a brother the same Circuit. judge of Otherwise, there would be no end to litigation.”
I am unpersuaded by majority’s view that Mor- rison received the matter on a facts, different set of therefore, Judge Robinson’s order was prior not res judicata. It is evident from Robinson’s order that he considered but abandoned the issue of excusable neglect by respond- ent’s as he cited his efforts to locate him. I would hold that the relief
Accordingly, re- by sought spondent to Code Section 15-27-130 was inappro- priate, and that to this Court was appeal respondent’s only recourse. The filed notice intention to appeal but Therefore, failed I perfect appeal. would hold bound the order of summary judgment. without that one
Assuming, deciding, circuit judge may utilize Code Section 15-27-130 to an vacate order of sum- rendered mary anоther I circuit do not judge, justified believe such was this case. relief The record reveals extreme negligence prior at- for the torney Town of Loris. The attorney notified respond- ent on that he April resigning Attor- City without ney the Town of the informing to be held 1977. April Town of Admittedly, *12 Loris was left in a difficult situation of its resignation attorney; yet it could have taken itself in the steps protect law- pending suit.
Despite neglect attоrney inform the failing of the Town this Court has upcoming hearing, consistently held that neglect attorney an with the synonymous the client. As stated Mr. neglect (now Lewis Justice 456 in Lee 240 Peek, v. opinion
Chief Justice) prevailing 213, 353, 203, S. C. S. E. 358 (1962): 125 (2d) “[Tjhe is that the undoubtedly rule general neglect client. . . . The and omis- attorney is the acts sions of in such those of client.” case are attorney Flowers, See Simon 231 E. also v. S. (2d) C. 99 S. . CM, Clark 391 v. 244 S. E. 743 (S. C (1957); (2d) 1978). justifies its majority the above departure gen-
eral rule the conduct of by characterizing respondent’s prior' view, In line attorney “willful abandonment.” be- my tween and willful abandonment not to clearly negligence drawn as to result in two instances. justify contrary I the neglect would impute affords concludethat Code Section 15-27-130 Elliott, v. See Woodward remedy culpable neglect. Cannon, ; 204 Savage E. 477 (1887) S. 473, 30 S. E. S. C.
I reverse. would JONES, CLARK, Appellant. Respondent, v. Fred Maurice Betty G. (252 (2d) 564) S. E.