Opinion
14371
November 7, 1936.
Before MERCHANT, J., County Court, Spartanburg, May, 1936. Affirmed.
Proceeding by Jesse Cleveland to require J. Davis Kerr and another to show cause why a default judgment against relator should not be set aside. From an order denying relator's motion to set aside the judgment, relator appeals.
The order of Merchant, J., is as follows:
On May 25, 1936, a verified petition of Jesse Cleveland was presented to me, on which verified petition, a rule to show cause was duly issued by me against J. Davis Kerr and S.M. Henry, sheriff, that they and each of them be required to show cause before me on June 1, 1936, why the prayer of the petition of the relator should not be granted and the judgment heretofore entered be vacated and set aside and the petitioner be allowed to answer. On May 25, 1936, another order was passed by me changing the return date to May 27th rather than June 1st.
Pursuant to the verified petition and rule to show cause, the plaintiff-respondent, J. Davis Kerr, and the respondent, S.M. Henry, sheriff for Spartanburg County, duly made their returns and the matter came on for hearing before me.
The motion to vacate and set aside the judgment heretofore entered was based on the allegations of the relator that he was entitled to relief under Section 495, Code of Laws S.C. 1932, on the grounds that he was taken by surprise and was entitled in addition to relief because of excusable neglect. The sole claim of surprise and excusable neglect arose out of the following facts: It appears that on March 18, 1936, the plaintiff-respondent served on the relator-defendant a summons for relief, which summons stated that the complaint would be filed in the office of the Clerk of the County Court for Spartanburg County. The relator-defendant claims that during the 20 days' period permitted and allowed for making an appearance or answer, that he called by the Clerk of Court's office for Spartanburg County and requested as to whether or not the complaint had been filed; he was informed by the Clerk that the complaint had not been filed. It is undisputed that the relator-defendant neither personally nor through an attorney gave any notice of appearance or demanded a copy of the complaint from the plaintiff-respondent or his attorneys. At the next term of County Court for Spartanburg County the plaintiff-respondent proved his case in open Court before a jury and a verdict was awarded him in the sum of $125.90 on May 7, 1936. In due course judgment was entered and shortly after 10 days had expired from the rising of the Court and entry of judgment, the plaintiff-respondent placed said judgment in execution, which execution was signed by plaintiff-respondent's attorneys and indorsed by the Clerk of Court and it was turned over to the respondent, S.M. Henry, as sheriff of Spartanburg County, for collection by levy or otherwise. The relator-defendant, upon being notified by the sheriff that said judgment was in his hands for execution, petitioned this Court for relief on the grounds hereinabove stated.
The showing made before me by the relator-defendant is woefully weak, and in the exercise of my sound discretion, I would be compelled to refuse the relief demanded. The affidavits submitted show that the relator-defendant had full knowledge of the pending suit and knew at all times the nature of the cause of action and should have known whether he desired to contest it. Furthermore the affidavit of the plaintiff-respondent shows that just prior to the service of the summons he had written the relator-defendant setting forth in detail practically the same facts, which were later incorporated in the complaint and the relator-defendant never denied any of the statements contained in said letter. However, the identical case raised before me has been passed on by the Supreme Court of this State in the case of Baker-Jennings Hardware Co. v. Culp, 105 S.C. 418, 90 S.E., 26. In that case it was adjudicated that action is commenced when the summons is served, and it is the defendant's duty, if he desires to contest the action, to give the plaintiff notice of appearance and demand a copy of the complaint and upon his failure to do so within 21 days he is in default. In the case at bar, this was admittedly not done. The doctrine in the above case was later sustained by our Supreme Court in the case of Bissonette v. Joseph, 170 S.C. 407, 170 S.E., 467. The relator-defendant had every opportunity to have made an appearance and demanded a copy of the complaint within the 20-day period allowed for such purpose, but this he failed to do. The showing made before me indicated that the relator-defendant was actually grossly negligent and cannot at this late date seek relief on the grounds of surprise or excusable neglect.
It is therefore ordered that the orders and rules to show cause heretofore issued by me on May 25, 1936, be, and the same hereby are, revoked and rescinded.
It is further ordered that the relator-defendant's motion to vacate and set aside the judgment heretofore entered and permit him to answer be, and the same hereby is, denied. Let the relator-defendant bear the costs of this motion, same to be taxed up in the original proceedings.
Messrs. A.C. Platt and J.C. Wrightson, for appellant, cite: Setting aside judgment: 77 S.C. 85.
Messrs. Perrin Tinsley, for respondent, cite: Vacating judgment: Sec. 495, Code 1932; 83 S.C. 504; 64 S.C. 338; 70 S.C. 160; 53 S.C. 224; 17 S.C. 405; 38 S.C. 556. Exceptions: 116 S.C. 387; 126 S.C. 226.
November 7, 1936. The opinion of the Court was delivered by
The Court is in full accord with the findings and conclusions reached by Judge Merchant of the Spartanburg County Court, before whom the rule to show cause was heard. Accordingly, the exceptions are overruled, and the order appealed from is affirmed.
Let it be reported.
MR. CHIEF JUSTICE STABLER, MESSRS. JUSTICE FISHBURNE and BAKER and MR. ACTING ASSOCIATE JUSTICE A. L. GASTON concur.