*1 on the above code se. He refused to charge per negligence there evidence in record section as determined had to do anything of excessive or of speed having speed trial error with the wreck. We find that the to make tire by refusing requested charge.
Reversed and remanded for a new trial. J.,C. concur. JJ., Littlejohn
Lewis, Ness, J., Rhodes, participating. JOLLEY, JOLLY, Appellant, Respondent. R.
Eudora v. Gene
(220 882) E. (2d) Franklin W. Esq., Appellant, Spartanburg, for cites: *2 Wildman,
Donald B. Esq., Respond- Spartanburg, for ent, cites:
Franklin W. Esq., Appellant, for in Reply. 18,
December 1975.
Per Curiam:
This action was commenced resident of plaintiff, Carolina, Spartanburg County, against Rutherfordton, Carolina, a resident on April is an $2,000.00, 1974. It recover due be- allegedly action cause the defendant failed to a construction complete job summons, under the terms of a contract. without a com- was served at his plaint, North Carolina
5.96 The plaintiff under our Long
residencie Statute. Arm. n same was not bn verified complaint June served, defendant; default was rtiade affidavit "upon 27, 1974, a on November November DeZern, the Honorable Thomas was entered by J. Court, presumably upon Spartanburg'County .... presented. evidence judg- notified of Thereafter, within counsel who petitioned ment and employed under terms one the default year, vacate- Code, for That 10-1213, Laws of South Carolina n follows: as part section .reads .in .Code mistake, etc.; amendments.— 10-1213. Relief from “§ such terms .upon court may, its one notice thereof re- time within aftér just, year at order other- lieve from -party judgment,' proceeding inadvertence, mistake; taken'- him sur- against through *3 in an omission supply and may or neglect prise proceeding.” counsel, of DeZern granted argument Judge
After hearing allowed the motion, vacated the to tire com- file in which to twenty days responsive pleadings forth four excep- plaintiff appealed, setting plaint. tions.
Counsel for the defendant the court asked dismiss do appeal exceptions that ground comply Court, as none of 4 of this inasmuch Rule four or- a “distinct exceptions presents principle- by have been violated law” claims to which the plaintiff concise, be more lower court. Although exceptions might alert counsel for defend- they we are of the that opinion decided, of the real only ant Court issue and. which is:
Did vacating'the DeZern abuse his. judgment? . It should be noted that the Code section' herein- quoted above leaves the matter of whether not the of, should be Court, vacated to the discretion not this (cid:127) one, lower court. The case is a close and while this Court unanimous in its thinking, majority Court is of the opinion the lower court did not abuse and, its discretion the order accordingly, from appealed affirmed. It is not sufficient to justify reversal that'we An disagree. abuse of discretion must be shown. made the trial consisted of letter,
affidavit 10, .1974, (2) May addressed to the defendant from Attorney Dockery J. reads, Rutherfordton. The affidavit .part, follows: . home, “On at his April deponent was served a Summons,. Served, Edwards, N.ot Carl M. Complaint Rutherfordton, Sheriff for the Deputy County North Summons, Served, Carolina. The Not Complaint was dated March and was W. At signed Franklin Law, in torney at Deponent Carolina. friend, inquired Edwards, a as to the Deputy personal effect of legal this document. The advised him that deputy as he understood the it was noof effect without paper, some further notification as to the nature the claim. of. further Deputy Edwards suggested deponent see Service, about the matter. The Affidavit of Edwards by Deputy was sworn to on May consulted then at. law “Deponent Dockery, attorney J. Rutherfordton, Carolina, and Mr. Dock- presented *4 Summons, -Served, Not with the which he ery Complaint received. Mr. that Dockery had advised he did not although (cid:127) matter, know Carolina the South Law under North this. law, instrument defendant had Carolina received was and without effect. Mr.' compulsory legal Dockery worthless in the there was fact that significance told the' Sum- deponent rather -a attorney mons an than by' judge, in his Martindale- Franklin W. Allen was not listed Mr. no that absolutely Hubbell and Spartanburg attorney, as to the notice as to the nature action presented file be careful to neither to He warned deponent defendant. and thereby to Carolina in the nor South case any go papers service of local himself to Sum- possible personal expose formal into the matter that any inquiry mons. He advised as a submission to jtirisdiction be construed might friend a reliable the South Carolina suggestion Court. to determine in check the Court House might Spartanburg made, informal basis of the such action claim was but. in fruitless, no filed since were proved papers would A brief memo- House until November Court Mr. Dockery of the conversation parts randum of attached hereto. ignorance basis of this advice and
“On the claim, viewed the Summons either Jolley’s deponent Mrs. to Carolina'and him to South expose trick cause go State, the' or as formal within himself to service personal to set aup in attorney Spartanburg proposal meeting He assumed that and deponent. between the plaintiff in demand the Spartanburg allow mere would of a working presence participation Carolina, in with- resident a lawsuit of the nature of the claim and out notification giving travel and the defendant to legal expenses incur causing had whether or not a colorable claim determine simply been made.” submitted to the motion. plaintiff response nothing
Accordingly, undisputed. that the mistake argues for the appellant-plaintiff Counsel fact, one of that the accordingly is one of law and hand, relief. On the other erred coun- trial judge submits that the case comes for the respondent-defendant sel 10-1213 and involves a of fact. within clearly
599 594]
There is oftentimes a delicate line between questions and of fact. The cases vacation are involving relief, this legion State. have and Many granted many denied relief. Much must left to trial dis- the judge’s cretion, case, and is true where the particularly same who heard the evidence and judge the judg- ment has made the determination that the same should be set aside. actions be commenced the
Under our practices, without of a summons a 10- 10-401) complaint (§ service (§ State, in this which the summons used traditional 633), Inc., is Rochester v. Holiday in the cases of Magic, quoted 253 S. C. E. 387 and Brown v. (2d) (1969), Weathers, 251 S. C. is a (1968), poor vehicle for very layman a to what is involved. alerting our Under once practice, jurisdiction the acquired by serv ice alone, summons need be served complaint upon the It defendant. is sufficient if summons the advise the de fendant where will be filed. complaint when Accordingly, an action is commenced service of a summons only, in a resulting does judgment, usually not know the nature of the claim until advised judgment.
It incumbent the defendant to to the satis- prove faction of trial that the was taken judge (1) inadvertence, mistake, him his or against through surprise, and that he a meritorious defense. neglect, (2) to the trial and we are convincing not in that he position say abused discretion in grant- the relief ing and a trial ordering merits.
We recognize fact that it is that the statutes important the rules of which designed are promote speedy orderly determination of causes, should be com- time, with. plied At same must it not be forgotten purpose statutes is to aid the administration of inexcusably, is willfully, justice. person who. from the deserves no consideration court. of faulty á judgment. involves normally matter
excusability law; it is matter oftentimes Oftentimes it a matter of it.,is fact; times as many here combination .two.. record, cannot that-the say From of the entire we review *6 and, the order- accordingly) lower coürt abused its discretion DeZern Affirmed.-
Ness, : (dissenting) Justice I with the dissent. Disagreeing majority opinion, sued and obtained default judg- .Eudora Gene Jolley Jolly was ment. The defendant’s motion to vacate judgment n plaintiff appeals. its court abused the lower whether issue before us to answer holding defendant’s failure constituted neglect. summons within twenty days its discretion and I abused would the lower court conclude reverse its order. served with was 1974, 'personally
In April, served, his residence Ruther- at summons, not complaint North Caro- secured fordton, He promptly Carolina. familiar informed defendant counsel. Counsel lina was Carolina, but in North Carolina the law of South would be meaning- of a complaint summons without service Further, to file any less. he advised papers defendant in a waiver result either might because enter any appearance of certain rights. entered. When November, 1974, default judgment
In he refused payment, of the judgment, was notified defendant counsel, to vacate the and moved Carolina employed South motion, lower court found In judgment. and his defense failure had meritorious the result of mistake. answer was n Code Section 10-1213:authorizes a discretion, in its to vacate de when the judgments ahas fendant meritorious defense and demonstrates the fail ure to answer was due to excusable timely The deJ neglect. fendant to have the vacated because sought he had. received erroneous advice from a'North Carolina attor Thus, he ney. of law and asserting mistake not a mis take of fact as a basis for vacating jüdgment. Ordinarily mistakes' of are not within-the purview statute. Cannon, v. Savage 473, 30 E. C circumstances, Under limited very we have held Section occa-; 10-1213 be to vacate default applied judgments sioned errors of law. When the defendant has used due diligence" counsel and takes counsel prompt employing to resist steps entered complaint, due counsel’s have- misunderstanding procedure,'we permitted Cannon, vacated. v. Savage Johnson supra; v. Finger, S. C. 86 S. 673 (1915). In. these *7 cases relief has been because default was ex- due to cus'able of the Peek, 240 Lee áttorney. 203, v. S. C. 125 fault E.S. 353 (2d) (1962)
Every mistake is counsel not excusable and the mere fact default was by occasioned of counsel advice erroneous ordinarily affords no basis for the judgment. vacating Lee Peek, v. The supra. inadvertence of is counsel imputed Rabon, defendant. Strickland v. 218, 234 S. 107 C. S. E. 344 (2d) “Neglect is (1959). attorney neglect client, mistake, and that no inadvertence or attrib neglect utable to an can attorney successfully be used as- ground relief, for unless it would have been excusable if attributable to the client. The acts and omissions of the such Flowers, case are of the Simon those client.” v. 231 C. S. 391, Peek, S. E. Lee v. 99 394 (1957); (2d) a . supr
In failure of out state counsel to discussing answer due South Carolina ignorance this Court procedure, have should for the defendant
has said: counsel “Obviously upon receipt counsel immediately South Carolina employed on of (out of the the part summons. lack knowledge of state as to did procedure counsel) their failure to further the matter.” Rochester justify pursue 154, Inc., v. S. 253 C. 169 E. Holiday Magic, (2d) 387, 390 counsel We concluded mistake of (1969). reverse trial court. broad discretion in vacat-
The trial invested with court this motion con- however, in it was judgments, ing It did not find the of the neglect trolled an error law. excusable; it concluded the defendant attorney was rather attorney’s his reliance advice. excused due to controlled error of When the trial court’s discretion Edwards law, review its decision. v. may this Court Fer- Brown S. E. (2d) (1970); 254 S. C. guson, Weathers, 160 S. 251 C. v. advanced to open be
A cogent argument merits. their be decided on ¡ should controversies judgments if the defendant has This argument appealing particularly has the plaintiff process on advice of counsel. When relied must accorded and secures judgment, rights served stautory require- He complied treatment. just of his claim. timely adjudication ments is entitled to outweighs the judgment upheld right plaintiff’s Unnecessarily delayed who right action-, in court. day to have his
T would reverse. J.,C.
Lewis, concurs.