40 S.E. 961 | S.C. | 1902
February 25, 1902. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Ernest Gary, of which the following is a copy: "This cause came on to be heard by me on July 6, 1901, on motion of the defendants, for an order *508 setting aside order for judgment in said cause, opening same and allowing the defendants to answer the complaint. The motion therein was supported by affidavits, and a petition of the defendants (copies of which are set out in the `Case') to the effect that they had been prevented from answering through mistake, inadvertence, surprise and excusable neglect, under sec. 195 of the Code of Civil Procedure, in that they had been advised by Mr. William Platt, of this county, that judgment could not be taken against the partners individually on the complaint served. Affidavits were submitted by the plaintiff in opposition, showing that the defendants had conferred with regular practicing attorneys at the Columbia bar in reference to the case, and that they had been represented by Mr. P.H. Nelson, practicing at the Columbia bar, for about a week previous to the expiration of the time to answer as extended therein. Upon reading the affidavits submitted on both sides, and after hearing Hunter A. Gibbes in support of the motion and Frank G. Tompkins, one of the attorneys for the plaintiff, in opposition, I do not think that the neglect to answer was such as would warrant me in opening the judgment. It is, therefore, ordered, that the motion be dismissed with costs."
The exceptions for the purpose of this appeal are set out in the record, and will be included in the report of this case by the Reporter. The first, second and part of the fourth exceptions impute errors to the Circuit Judge in his findings of fact, of which this Court cannot take jurisdiction, unless there was abuse of discretion, of which there was nothing of the kind. On the contrary, we agree with the Circuit Judge in such findings. True, only one of the defendants spoke to Mr. Nelson; but in doing so he claimed to represent the other defendants, which claim has not ben denied by any of the defendants, and there can be no doubt from Mr. Nelson's affidavit that he did represent the defendants for a time at least, and rendered them good service by obtaining for them further time to answer, signing the agreement to that effect as "Atty for defts." *509 What advice Mr. Nelson gave to defendants he very properly did not disclose; but when the defendants found that they were unable to comply with the requirement as to the fee, they said, through their agent, that they would let the matter go by default. It also appears from another affidavit that the defendants had consulted another attorney, who, however, was very properly unwilling to disclose what had passed between them.
The third and part of the fourth exceptions raise the point that there was error in the judgment sought to be opened because the relief granted went beyond the prayer of the complaint. It is true, that sec. 297 of the Code does provide that: "The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint." And while we are not prepared to admit that the relief granted by the judgment in question did exceed that demanded in the complaint; yet, even if that be so, it would constitute a mere error of law remediable by an appeal, but would not render the judgment null and void. Ross v. Carroll,
The only remaining question is that presented by the 5th exception, in which it is claimed that Judge Gage had no jurisdiction to render the judgment in question, because it exceeded the relief demanded. It is not claimed that the *511
Court had not acquired jurisdiction of the persons of the defendants in the action in which the judgment in question was rendered, and there can be no doubt that the Court had jurisdiction of the subject matter, even if it be regarded solely as an action for the dissolution of the partnership. It is clear, therefore, that the Court had jurisdiction of the case and of the parties, and hence had jurisdiction to render a judgment therein; and if such judgment was erroneous, the remedy was by appeal, which was not resorted to in this case. LeConte v. Irwin,
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.