127 S.E. 835 | S.C. | 1925
May 12, 1925. The opinion of the Court was delivered by In an action upon fertilizer notes the defendant, through his attorneys, Efird Carroll, filed a verified answer, setting up failure of consideration and a counterclaim. The cause having been duly docketed, and coming on for trial, Mr. Efird, one of defendant's attorneys, advised plaintiff's counsel that the defense would not be pressed further, and allowed a judgment on verdict to be entered against his client without a contest. Several months thereafter upon motion, duly noticed, based on an affidavit of Mr. Efird, his Honor Judge Rice, set aside the judgment, under section 437, Code Civ. Proc., 1922, upon the ground, in substance, that the defendant's counsel had consented to the judgment against his client under a misapprehension of fact, due to excusable neglect. From the order vacating the judgment, plaintiff appeals.
The affidavit of Mr. Efird unquestionably tended to establish that he acted under a mistake of fact and that the mistake was due to his confusion of the facts in this case with those in a similar case against another party represented by his firm. It therefore cannot be held that the finding of fact of excusable neglect on the part of Mr. Efird was wholly without evidence to support it. Nor is there any showing made by appellant that the judge's ruling was predicated upon or controlled by error of law. That the excusable neglect of an attorney inures to the benefit of the client in such a matter is not open to question.Ex parte Rountree,
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and FRASER, and MR. ACTING ASSOCIATE JUSTICE J.W. JOHNSON concur.