Opinion
17207
September 24, 1956.
Chas. F. Cooper, Esq., of Columbia, for Respondent-Appellant, cites: As to case at bar involving a default judgment in an action on contract, and judgment can not be re-opened: 217 S.C. 256, 60 S.E.2d 590.
Messrs. Baker Baker, of Columbia, for Respondents, cite: As to order for judgment, void upon its face, being properly vacated by a judge other than the granting judge: 176 S.C. 235, 180 S.E. 43; 206 S.C. 355, 34 S.E.2d 592; 194 S.C. 403, 9 S.E.2d 919; 15 S.C. 36; 50 S.C. 491, 27 S.E. 913; 65 S.C. 129, 43 S.E. 386; 225 S.C. 180, 81 S.E.2d 717. As to exceptions, not argued in brief, deemed abandoned: 224 S.C. 489, 80 S.E.2d 47. As to exceptions being too general to be considered: 227 S.C. 535, 88 S.E.2d 623.
The order of Judge Baker follows:
On or about April 1, 1952, plaintiff brought an action against the defendants for breach of contract wherein the defendants covenanted and agreed as follows: (1) to pay plaintiff a weekly salary of $75.00 for his employment at a business known or referred to in the contract as the Main Street Drive-In; (2) to pay the plaintiff 25% of the net profits, which net profits were to be based on the business done each week after deduction of all expenses; and (3) the defendants authorized plaintiff to pay from the proceeds realized from the operation of the Main Street business a mortgage owing by plaintiff on equipment which he had used in an operation known as the Tiny Shoppe.
The plaintiff alleges in his complaint that as of the date of the complaint he was due the sum of $1,875.00 as salary, $8,750.00 constituting 25% of the net profits, this sum being computed upon the allegation that the net profits of the business averaged at least $1,000.00 weekly, and $6,500.00 by reason of the refusal of the defendants to make the agreed payments due on the equipment used by plaintiff in the Tiny Shoppe. The total amount of damages prayed for is $139,650.00.
On May 7, 1952, following the filing of an affidavit of default by plaintiff's counsel, the Honorable Steve C. Griffith, then presiding Judge in the Fifth Circuit, ordered judgment by default for plaintiff in the amount of $17,125.00, expressly reserving the right to plaintiff to obtain and enter judgment for all other amounts that would become due after April 1, 1952. This default judgment was rendered solely on the basis of the verified summons and complaint, the affidavit of service and affidavit of default. The amount of the judgment was arrived at by the total of the sums of $1,875.00, $8,750.00, and $6,500.00, which items have already been referred to.
On May 21, 1955, the defendants obtained separate rules directed against the plaintiff to show cause why the order for judgment should not be vacated and they be permitted to file an answer herein upon the merits of the case. In this rule the plaintiff was enjoined and restrained from attempting to collect the judgment by execution or otherwise. In due course of time plaintiff served his return to the rule and the matter was heard by me while presiding Judge in the Fifth Judicial Circuit.
Inspection of the order for judgment shows that it was rendered without the taking of testimony. Section 10-1531 of the Code of Laws of 1952 provides that in any action on contract, and when the action is for the recovery of money only, judgment may be given for plaintiff by default if the demand be liquidated, or if unliquidated, if plaintiff itemize his account and attach thereto an affidavit that it is true and correct and no part of the sum sued for has been paid by discount or otherwise, or if plaintiff prove his claim in open court, whether itemized or not, in which case the judgment shall be for the sum sued for as in the case of liquidated demands.
Plaintiff's claim arising from his alleged breach of contract is not liquidated. The weekly salary in the amount of $75.00 is the only provision which could come under the classification of a liquidated claim. The allegation of the complaint is that the net profits have averaged at least $1,000.00 weekly, and the amount he is due from failure to make the mortgage payments aggregates approximately $6,500.00. The latter items are unliquidated and require proof by the taking of testimony. The complaint does not contain an itemization of any amount, nor is there any itemized claim attached to and made a part of the complaint.
Since plaintiff's claims for damages are principally unliquidated, his proof should have been in open court by the taking of testimony, and the failure to do so warrants the relief demanded.
The return to the rule to show cause alleges an assignment of this judgment to the Mutual Savings and Loan Company on or about June 13, 1953. The judgment role before me does not contain any entry of this alleged assignment and there is no evidence of it being recorded. The alleged assignee was not made a party to this proceedings, and consequently its rights, if any, cannot be affected by this order.
The petitioner, or plaintiff, also challenges the right of the respondents to move to vacate after a delay of approximately three years. The record does not reveal when the defendants received notice of the rendition of the default judgment, or the date when they had knowledge thereof. As far as can be assumed from the showing made, the petitioners are not guilty of any reasonable delay in moving to vacate.
The petitioners have not appealed to the Supreme Court, but have proceeded by motion in the Court of Common Pleas. The question of whether the sought after relief could be obtained by motion in the lower Court is determined in favor of petitioners by the case of Patrick v. Wolowek, 225 S.C. 180, 81 S.E.2d 717.
It is, therefore, ordered, adjudged and decreed that the judgment heretofore obtained by the plaintiff James T. Broome be vacated and the defendants be permitted, within 20 days from the filing of this order in the office of the Clerk of Court, to serve such defensive pleadings as they may be advised. This order vacating the judgment is, of course, subject to any meritorious rights and claims possessed by the alleged assignee, Mutual Savings and Loan Company.
September 24, 1956.
The Order of Honorable G. Badger Baker has been carefully considered in the light of the record and the exceptions, and we find no error.
Let the Order be reported as the judgment of this Court.