Gaskins v. California Ins. Co.

• Decision Date: 13 November 1940
• Docket Number: 15165.
• Parties: GASKINS v. CALIFORNIA INS. CO.
• Court: South Carolina Supreme Court

11 S.E.2d 436

195 S.C. 376

GASKINS v. CALIFORNIA INS. CO.

No. 15165.

Supreme Court of South Carolina

November 13, 1940

James E. Leppard, of Chesterfield, for appellant.

P A. Murray, Jr. of Cheraw, and Joseph L. Nettles, of Columbia for respondent.

FISHBURNE Justice.

The appeal is from an order of the Circuit Court opening and vacating a default judgment taken by the plaintiff against the defendant corporation for $716.22 together with costs.

The summons and complaint had been served upon the defendant by service upon the State Insurance Commissioner on the 24th day of August, 1939, and the defendant failing to answer or demur within the twenty days allowed by law, judgment was entered on September 18, 1939, after the case had been referred to the Master for Chesterfield County to hear and determine all issues of law and fact.

On September 22, 1939, the defendant served notice that it would move before the Circuit Judge on September 26, 1939, for an order opening the default judgment and allowing it to answer upon the ground that the default occurred through the excusable neglect of counsel for the defendant. Two affidavits were submitted in support of the motion, one by Mr. Joseph L. Nettles and the other by Mr. P. A. Murray, Jr., attorneys for the defendant. Likewise before the Court were the complaint and a counter affidavit filed by the attorney for the plaintiff.

The motion was made under Section 495 of the 1932 Code, which provides that the Court may in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.

It appears from the affidavit of Mr. Nettles that he received the summons and complaint from the defendant on Monday, September 4, 1939, and by telephone he immediately retained Mr. P. A. Murray, Jr., of Cheraw, South Carolina, as local associate counsel, and requested him to investigate the facts and thereafter come to Columbia for a conference with Mr. Nettles preparatory to drawing the necessary answer. After telephoning Mr. Murray on September 4, Mr. Nettles left Columbia for New York on a business trip, and did not return to his office in Columbia until late in the afternoon of Friday, September 8. On the morning of September 9, Mr. Nettles went to Laurens County on business where he narrowly escaped a sunstroke, following which he became ill. He returned to Columbia on the afternoon of the same day, and was confined to his bed until Saturday morning, September 16.

It will be recalled that the time for answering the complaint expired on September 13. The affidavit of Mr. Nettles sets forth that he neglected to tell Mr. Murray what day the complaint was served, because he was confident that he would have a conference with Mr. Murray after the latter had investigated the facts, not later than September 11. On Tuesday, September 18, Mr. Nettles called Mr. Murray and requested him to come to Columbia to confer with him at his office, and asked him meanwhile to see Mr. J. E. Leppard, plaintiff's attorney, explain the situation to Mr. Leppard, and request an extension of time within which to answer. In accordance with this request Mr. Murray, on September 20, saw Mr. Leppard, who stated that he could not extend the time because judgment had already been entered on September 18, 1939.

Generally two issues arise upon every application to open or to vacate a judgment, namely, (a) the existence of grounds for opening or vacating a judgment where it is alleged to have been taken against a party by his mistake, inadvertence, surprise, or excusable neglect; and (b) the existence of a meritorious defense. Logically, the first issue for the Court to consider upon such a motion is the existence and sufficiency of the alleged grounds for opening or vacating the judgment. Lucas v. North Carolina Mut. Life Ins. Co., 184 S.C. 119, 191 S.E. 711; Savannah Supply Co. v....