*1 under either If the defense sustained plead- dent Phillips. fall on The amended pleading would liability Phillips. ing, should be that any liability paid simply alleges Phillips The defense is out of the escrow fund. nature affected, only remedy. did no more than substitute
Since the amendment present in the a different from relied upon original remedy fall of action so as to it did not set new cause pleading, up S. See: 54 C. within the bar of the statute of limitations. J. 284; Wilson Gregory, Limitations of Actions 282 and §§ 358. was, therefore, in- in error refusing The trial judge defense. allow the eighth However, disallowed. ninth defense was properly involves ninth defense The that the indicate is not which action or claim for a tort misrepresentation inwas third defense. Appellant dependent original claim this no from prior way prevented pursuing trial limitations. The judge of the statute of expiration amendment, as an defense correct in the ninth disallowing cause defense, a new wholly since it would set by way up, statute of limita of action is otherwise barred tions. is affirmed in in part, and reversed part this
and remanded consistent with opinion. proceedings JJ., Littlejohn, Ness, Gregory, Rhodes concur. Stewart, STEWART, Nancy Estate Administrator of the James FLOYD, D., Appellant. Respondent, v. Jesse J. M. 254) (265 S. E. *2 Kosko, Columbia,
George appellant. for Pulliam, Hammer and Michael A. Henry Columbia, for respondent.
March 1980.
Rhodes, Justice:
This is an from a appeal by Floyd denial of motion Jesse 15-27-130, brought pursuant Section South Carolina Code to vacate a default (1976) basis of inadvertence, excusable or We affirm. surprise. served with a summons com- originally and on Stewart, 1976 which plaint April respondent James administrator, death of sought damages wrongful caused daughter, allegedly negligence wan- tonness in the medical appellant, practicing physician, treatment of his intestate.1 these Upon receipt had them hand delivered both his appellant immediately personal and his insurer. attorney malpractice counsel
Respondent’s discovered that subsequently Court, of the jurisdictional limits Richland where County instituted, the action had been had been inadvertently grossly exceeded amount for in the damages prayed com- He forthwith plaint. contacted both the appellant’s personal attorney attorney insurer, appellant’s malpractice requesting they consent to an alteration in the erro- neous, caption by Richland changing Court County to Com- mon Pleas Court and that the case filed in the latter court. This was denied. request then Respondent’s ob- tained an ex order from parte the Richland Court on County 21, 1976 April the action for want of dismissing jurisdiction. A of the copy order dismissal was mailed to the attorney *3 insurer on appellant’s malpractice the same date.
A second summons and identical in complaint, every respect previous the the pleadings except of portion forum, caption the trial designating was served upon appel- 23, 1976,2 lant on April and filed in of the Court Common Pleas for Richland answer, no County. When appearance, or other was served within the pleading statutory period, 4, affidavit of default was filed on 1976. The case June 7, 1977, was heard on without September a with jury, judg- ment $80,000 $20,000 rendered for actual being punitive damages against appellant. 27, first filed motion on 1977 to
Appellant September vacate the default of lack of service. ground After a at which took the hearing, appellant emphatic posi- 1 initially appellant concerning The intestate consulted pain diagnosed being by pelvic inflammatory he admitted to caused disease. She was Hospital con Richland Memorial for the treatment of that discharged dition and hospital Eighteen was from the two weeks later. discharge, hours after such the intestate died at home. 2 him, Although appellant denies upon this service was made this issue conclusively prior has been resolved in a action adverse to contention. his served,
tion lower denied that he had never been the court from this motion. No was appeal perfected ruling. 15, va- On attempted November 1977 appellant, again cate section 15- default under judgment, proceeding inadvertence, or 27-130 on the basis excusable The lower motion. This surprise. court denied his appeal followed. motions brought determination lower court’s disturbed absent will
under section 15-27-130 Thermal of discretion. an abuse a clear showing Inc., 271 S. C. Co., Insulation Inc. Town & Campus, v. arises abuse of discretion 248 S. E. An (2d) (1978). controlled cases in which the order issuing judge factual, as order, upon some or based error law where conclusions, evidenitary from is without distinguished legal, 15-27- relief section Id. The under support. party seeking him 130 must show that was taken against the judgment inadvertence, mistake, his or excusable through surprise, he McInerny and that had a meritorious defense. neglect Toler, (1973). summons and com- the two sets of contends that it constituted excusable neglect so similar that were plaints second summons for him to conclude that the complaint fact reason of the that he had taken care of in the first hands of had set placed the reaction testimony attorneys. concerning Appellant’s set with second which he had when served supposedly *4 as- his continued suit diminished necessarily by papers of ever sertion he has no recollection having that personal is- His on this vital served with such testimony papers. therefore, is, sue and speculative. hypothetical the at This court has several cases passed upon involving to of a de tempt vacate default judgments ground fendant’s to the failure importance appreciate pleadings Toler, him. In served v. .the McInerny court re- upon supra,
441 fused to a com where, after the reopen judgment reading the plaint, defendant the in error and thought plaintiff him, had the because he inadvertently action brought against assumed he had no interest in the in since he lease question had Hol interest to his children. In DeNault v. assigned Builders, Inc., loway 271 S. C. (2d)265 the defendant in (1978) asserted excusable neglect failing to attend to a summons and because he was served complaint with two within the same complaints week and was confused as to the dates respective of service. This court affirmed the lower court’s refusal to vacate the In Thermal judgment. Co., Insulation Inc., Inc. v. Town & Campus, supra, this court declined to a default where two simi reopen lar suits were served on the defendants and one was de only livered attention, attorney it as being “mistakenly sumed” that both had been delivered to the In attorney. none of the cases cited above was there evidence of any expecta tion that the lawsuits against defendants would be served. case, In the instant both appellant’s personal attorney and insurer were alert to the malpractice fact that a second action would be probably forthcoming.3
Moreover, Wilder, the recent case of unlike v. Thompson C., S. 253 S. E. 108 no affirmative action was (2d) (1979),4 undertaken to meet the time appellant statutorily specified limit. in did reference to the second nothing set if he had a ascertain duty thereto. relating He no made communication of nature to his any attorneys the second service. concerning 3 malpractice Counsel for the insurer testified appel- that he called personal respondent’s attorney
lant’s counsel both after requested original again amendment copy suit and after had he received a county of advised to order of dismissal court suit. On both he occasions appellant’s personal attorney they might expect that well suit subsequenlty brought pleas. the court of common Wilder, Thompson supra, v. may distinguished also be from the instant case virtue of the fact that that the confusion was caused in through served). case court (complaints service two summons This previously (complaint noted a has summons not served) is poor alerting layman Jolly, vehicle for Jolley to what is involved. (1975). S. 220 S. E.
442 suit the original on the fact that relies heavily order. of an ex parte by dismissed the
was procurement ex- of ex order the use the parte we have condemned While Colum- instances, in rare v. Credit Bureau Herring cept 368, are un- bia, we (1979), its to able to .discern resulting appellant any prejudice were apparently use in this case. The attorneys appellant the time the second suit aware of the order of dismissal at was for- 23, on a of the order was filed since copy April the mail to at- attorney warded the respondent’s through for the who im- insurance carrier on torney April and informed called mediately personal appellant’s hold, are, then, under the him of its unable to We receipt. was circumstances the ex order' a here that presented, parte cause failure to to attention the proximate appellant’s give There the or- suit can be no serious contention that papers. der of dismissal been should not have the jurisdic- granted, defect on the face at- tional appearing complaint. insurer testified that he had fact torney malpractice to make prepared appearance special quash of. the service summons and for lack of complaint jurisdic- ex tion if the order had not been parte obtained. this record insufficient to The evidence in support when viewed in neglect of excusable finding decisions. found that ap our light prior Having a find has not sufficient evidence to presented pellant support of whether of excusable we do not reach the issue ing a meritorious defense exists. on of the discretion lower find no abuse of part
We the motion of appellant. court in denying Affirmed. concur. J., J., Ness,
Lewis, Littlejohn Gregory, dissent. JJ., : (dissenting) Littlejohn, Justice wherein I and would reverse the order dissent respectfully refused the default judgment. vacate judge lower court The issue before this court is whether is an error its An discretion abused discretion. abuse of law. The defendant asserts his failure to respond *6 inadvertence, and that due or to excusable surprise, neglect, 15-27- he is under entitled to have the vacated judgment § I Un- agree. Code Laws South Carolina (1976). of of has been an case, der the I would rule that there facts this abuse of discretion to error of law. amounting
This court has said:
“In dis- an abuse of whether there has been determining cretion all of the facts be and circumstances must evaluated. If the to vacate a met the requirements are judg- ment should be and the defendant to an- opened permitted swer.” Edwards 254 S. Ferguson, 224, 226 (1970).
An of this examination of all of the facts and circumstances case leads me to to re- the conclusion that defendant’s failure was due to excusable initiated error on the spond counsel in part court. plaintiff’s designating wrong error, for this the dilemma we nurse could not Except have occurred.
Counsel for the carrier is not to be insurance faulted to amendment to sum- refusing agree requested mons and the effect of which would be to transfer complaint, consent Such have jurisdiction. might conceivably deprived client, his under the the insurance of some defense company, of the terms contract. insuring to notice order, been without
The ex sought parte having This procured. interested improperly parties appearing, here- in such orders several opinions court has frowned upon and fail- counsel the application tofore. Failure to notify with a copy ure to the defendant’s personal provide order, of the set misunderstanding the stage resulted. Even if it conceded that counsel has be plaintiff’s dismissed, to was as a matter of entitled have the action right entitled to be the fact remains that counsel were opposing which was notified so that abreast that they might keep . we submits that taking majority place. opinion are unable to discern any prejudice resulting appellant [de- its in case.” I am not use this parte fendant] [ex order] at all sure this is true. Defendant avers that he . . never received notice nor a of .the order of the dismis- copy sal . . ..” At the time of service of the second summons and he had reason to believe the first was still complaint, action active. canWe to what have occurred only speculate as might had the matter handled the usual fashion. It is un- derstandable that a unfamiliar with the techni- layperson, calities of the law and the court and unaware of the dismis- action, sal of the first have conceived the might second set of He had delivered papers duplicates. properly copies the first to both own counsel and to counsel for papers *7 the insurance carrier. 15-27-130 should
This court has held that liberally § to strive for see construed to that justice promoted v. Ferguson, merits. Edwards of cases on their disposition at 175 S. E. 226. supra, (2d) has made efforts to In furtherance of this court justice, from caused by confusing default protect laymen judgments injustices We have also to eliminate pleadings. attempted caused confusion out of the use of summons arising (com- document. plaint served), confusing legal benefits from his Under the majority opinion, plaintiff in a court without juris- error of an action initial bringing confusion, without a cause of the diction. Such was in normal fashion the case would have disposed on its merits. Wilder, in
The facts here are akin to those Thompson C., where we said: S. (2d) (1979), of these iden-
“In our view two respondent’s prosecution defendants, the same tical actions against essentially coupled with the use of identical Summons Not Served Complaint to confuse sufficiently irregular (Em- appellants.” added.) phasis
Here, there, as confusion led to excusable resulting neg- lect defendant and warrants vacation of the judgment.
In Inns, Howard v. 246 S. E. Holiday we (1978), to soften the attempted harsh impact default judgments by that when has been an there holding appearance but no filed, answer or demurrer the defendant is entitled to in the participate ascertainment of damages by cross-examining plaintiff’s witnesses and to evi- objecting dence. We held that one in default concedes but does liability not concede the Here, amount of in a tort action. liability both defendant’s counsel and his insurance carrier’s counsel had made an as relates appearance to the first summons and complaint. Counsel for the was well aware that both plaintiff personal counsel and counsel insurance had been employed defend the claim. The of the lower court have the ruling may effect of relieving insurance carrier of While it liability. is true that not, had defending attorneys technically made an speaking, appearance relates to the second sum- mons I think that the complaint, facts the case bring within the letter, if not the in spirit, our Howard. ruling A can strong argument be made for the that de- proposition fendants should be notified of the default hearing every instance, such that the court would have the benefit adversary as relates proceeding to the assessment of dam- ages. Howard did not that far in its go Such an ex- ruling. *8 of the rule would tend to pansion eliminate of the in- many out of justices default with arising judgments which both the lower court and this court are regularly Even plagued. if the answer, defendant .to permitted he should be allowed to defend mitigate damages permitted and/or Howard.
While the does not majority reach issue of whether a exists, meritorious defense the record shows that abundantly de- “meritorious out a case has made the defendant reversed, should be court of the lower issue. The order fense” should be answer, the case the defendant permitted fashion. in the conventional tried on its merits J., Gregory, concurs. INC.,
GENESCO, Respondent, v. PALMETTO PLAZA SHOPPING CENTER, Shopping Plaza Palmetto INCORPORATED a/k/a Inc., Center, Systems, Appellants. Food Inc. and Hardee’s (2d) 34.)
(265 S. E.