Graham v. Town of Loris

• Decision Date: 02 November 1978
• Docket Number: No. 20804,20804
• Citation: 272 S.C. 442,248 S.E.2d 594
• Court: South Carolina Supreme Court
• Parties: Horace GRAHAM, Sylvester Stevens, Harney Graham, Gene Stevens and Clifton Todd, Appellants, v. TOWN OF LORIS, Respondent.

Page 594

248 S.E.2d 594

272 S.C. 442

Horace GRAHAM, Sylvester Stevens, Harney Graham, Gene Stevens and Clifton Todd, Appellants, v. TOWN OF LORIS, Respondent.

No. 20804.

Supreme Court of South Carolina.

Nov. 2, 1978.

Stevens, Stevens & Thomas, Loris, for appellants.

William V. Josephs, Jr., Loris, for respondent.

PER CURIAM:

This appeal is from an order of one circuit judge setting aside a summary judgment previously granted to the appellants by another circuit judge. This judgment was vacated pursuant to S.C.Code § 15-27-130 which provides, in part, 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 . . . ." The appellants contend that this Code Section does not permit the vacation of summary judgments and, further, that the vacation proceeding constituted a readjudication by one circuit judge of matters previously decided adversely to the respondent by another circuit judge. We disagree and affirm the vacation of the summary judgment.

The appellants, residents of the Town of Loris, brought suit to have the zoning ordinances of that town, which were adopted in 1960, declared null and void as those ordinances apply to their respective properties. The appellants contended that the Town, prior to adopting the zoning ordinances, did not hold public hearings after notice as required by statute ¹ and, thus, their respective properties were encumbered without notice and an opportunity to be heard. The Town, the respondent herein, answered through its City Attorney, John L. Reaves, who interposed three defenses a general denial, laches and estoppel.

On April 25, 1977, the appellants moved for summary judgment before Honorable Klyde Robinson with Judge Robinson ordering that a hearing on the matter be set for April 28th. Reaves did not appear at the scheduled hearing on the 28th and the hearing was continued to the following day while the sheriff attempted to locate Reaves. The sheriff's attempts were futile and, on April 29th, a hearing was held with only counsel for the appellants appearing. Based on the pleadings, Request for Admissions which had been served on Reaves, and depositions taken from the appellants and the Town Clerk, Judge Robinson granted the appellant's motion, declaring the zoning ordinances null and void as applied to the property of appellants by order dated April 29, 1977. The Requests for Admissions, which went unanswered and were deemed admitted, and the deposition taken from the Town Clerk disclosed that the respondent had not complied with the statutory requirements for enacting zoning regulations. The depositions taken from the appellants indicated that, although some of them had applied for and received building permits from the Town, none of the appellants had received notice of the enactment of the regulations as required by statute. The action of Judge Robinson in granting summary judgment is justified by the record which he had before him.

Subsequent to the granting of the summary judgment, William V. Josephs, Jr. entered the case as attorney for the Town of Loris on May 12th. Judge Robinson having left the circuit, Josephs moved before Honorable James B. Morrison to have the summary judgment set aside under Code § 15-27-130 contending that the judgment had been taken against the Town of Loris through its excusable neglect and that the Town had a meritorious defense. A hearing was held and, in support of its motion, the respondent presented a letter from Reaves dated April 26th and received by town officials on April 27th, in which Reaves resigned as city attorney. An affidavit from the Mayor of Loris was presented to the effect that city officials were unaware that a hearing had been scheduled in the case and that city officials had never been contacted by the sheriff when he was attempting to locate Reaves. The Mayor in his affidavit further stated that he had been attempting to get the Town's file in the case from Reaves since he had resigned but was unable to obtain it until May 16th.

On the issue of whether it had a meritorious defense, the respondent submitted an affidavit from the Town Clerk which stated that two of the appellants had previously applied for and were issued building permits pursuant to the zoning ordinances. The affidavit also stated that, since 1972, numerous building permits had been issued pursuant to the zoning ordinances and ten public zoning hearings had been held after public notice thereof. Further, the Town Clerk averred that one of the hearings, which was held in November 1976, had been on the application for a zoning change by one of the appellants in the present action. The application for a zoning change having been denied, this suit was instituted by him and the other appellants in January 1977 attacking the validity of the zoning ordinances.

Based on the above uncontroverted facts, Judge Morrison found that the respondent had established excusable neglect in that it had no actual notice or knowledge of the summary judgment hearing and was not represented by counsel at the hearing, its attorney having resigned. Relying primarily on the evidence that the only appellant with an immediate interest in striking down the zoning ordinances had already recognized them as valid by his actions in obtaining permits and seeking a reclassification of his property and that the Town was actively enforcing the ordinances, Judge Morrison found the respondent had made a prima facie showing of meritorious equitable defenses. He, accordingly, granted the respondent's motion and set aside the summary judgment.

On this appeal from Judge Morrison's order, the appellants have listed three questions for our consideration which, as stated in their brief, are as follows:

(1) Did Judge Morrison have any discretion or authority to set aside an Order of Summary Judgment upon matters previously decided by Judge Robinson?

(2) Was it proper for Judge Morrison to set aside summary judgment issued by Judge Robinson based upon excusable neglect by holding that the defendant was not represented by counsel when Judge Robinson had previously held that ample notice had been given to the attorney for the defendant?

(3) Was it proper for Judge Morrison to set aside summary judgment issued by Judge Robinson upon the premise that the defenses of laches and estoppel are questions for a jury when these questions had been previously decided adversely by Judge Robinson sitting as a law judge?

Turning to the first question set out in the appellant's brief, the appellants contend that Judge Morrison has erroneously reviewed and overruled the order of another circuit judge. While conceding that § 15-27-130 permits default judgments to be set aside, they claim that the section has no application to a summary judgment, which is an adjudication on the merits, and that the summary judgment involved here is Res judicata.

These contentions are without merit. Code § 15-27-130 is not limited to the vacation of default judgments. If such had been the intention of the legislature it could have easily inserted the word "default" before the word "judgment". This it did not do and, indeed, this Court has applied this section in non-default situations, see, American Trust Co. v. Bloom, 148 S.C. 386, 146 S.E. 249 (1929) and Dunton v. Harper, 64 S.C. 338, 42 S.E. 153 (1902).

Excerpts from the following cases are helpful on the issue of the authority granted a circuit judge over the acts of a colleague.

In Steele v. C., C. & A. Railroad Co., 14 S.C. 324 (1880), the Court stated:

The Court of Common Pleas is a unity, although its jurisdiction is administered by a number of judges who are, in some sense, the exponents of the court. When one of these judges makes a decision upon the merits of a matter within his jurisdiction, that is not merely the personal opinion of the judge, but a judgment of the Court of Common Pleas, which exhausts the power of the court upon that subject and must stand until reversed Or set aside in the manner prescribed by law. There is no appeal from one Circuit Judge to another. All are of equal dignity and have the same right to pronounce the judgments of the court. One Circuit Judge Upon the same state of facts, has no power to change, alter or reverse a decision of a brother judge of the same Circuit.

At 329 (emphasis ours).

And, in Anderson v. Toledo Scale Co., 192 S.C. 300, 6 S.E.2d 465 (1938), the Court stated:

The judgment of a Court of competent jurisdiction, in which the proceedings are regular and in accord with law and the rules of procedure, is the solemn adjudication of the law of that case, and ought not to be lightly set aside. The Code provides the method by which it may be set aside ; but that method must be strictly followed.

6 S.E.2d at 466 (emphasis ours).

The manner prescribed by law and provided in the Code for setting aside a judgment with which we are here concerned is embodied in § 15-27-130. The summary judgment in the present case was vacated pursuant to that section and does not constitute a review by one circuit judge of the decision of another because, as will be discussed below, the two orders involved were not made "upon the same state of facts" and were directed to different determinations. As this Court stated in Dunton v. Harper, supra :

When a different circuit judge than that one who passed an order from which relief is sought under section 195 of [272 S.C. 450] our Civil Code of Procedure comes to hear such motion, he is not called upon to review on its merits the order referred to. Therefore, accurately speaking, it is not a different circuit judge than that one who made an order undertaking to vacate and set aside an order made by another circuit judge. The theory of the law is, if the order is vacated for...