Hedgepath v. State Highway Dept.
| Decision Date | 14 August 1974 |
| Docket Number | No. 19879,19879 |
| Citation | 263 S.C. 98,207 S.E.2d 820 |
| Court | South Carolina Supreme Court |
| Parties | C. H. HEDGEPATH, as Administrator of Estate of Bessie C. Hedgepath, Appellant, v. South Carolina STATE HIGHWAY DEPARTMENT, Respondent. |
Furman R. Gressette, St. Matthews, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Donald V. Meyers, Columbia, for respondent.
In this wrongful death action, the defendant, South Carolina State Highway Department, having failed to answer or otherwise respond to the summons and complaint within twenty days after service, moved to be relieved of its default pursuant to Section 10--609, Code of 1962, which provides, inter alia, that the court may in its discretion allow an answer to be made after the time limited by the Code. Plaintiff appeals from an order permitting defendant to answer.
The motion was supported by the certificate of the Deputy Attorney General in charge of the department's litigation that he believed it had a meritorious defense and by his affidavit that upon receipt by the Attorney General's office the summons and complaint had been placed by an inexperienced stenographer on his desk 'in the middle of a stack of eminent domain files on which deponent was working . . . and that the subject file did not come to deponent's attention until time for responsive pleading had expired.'
Plaintiff resisted the motion on the ground that the showing made was insufficient to establish excusable neglect. The court construed the applicable statutes to require a showing of excusable neglect when relief from a default order or judgment is sought under Section 10--1213, but not so where, as here, permission to file a delayed answer is sought under Section 10--609. Thus, construing the two Code Sections, the court granted the motion, stating, 'While the showing here made may not be sufficient to support reopening a Judgment under Section 10--1213, it is clear that it is sufficient for this Court, in its discretion, to permit the filing of a delayed Answer under Section 10--609, which is the Section applicable to the facts in this case.'
In adopting this construction of the statutes, the court followed the rationale of the opinion of Mr. Justice Bussey in Lee v. Peek, 240 S.C. 203, 125 S.E.2d 353 (1962). However, the opinion of Mr. Justice Lewis, which by the concurrence of the other Justices, became the prevailing opinion in that case, expressly held that a showing of excusable neglect is a condition precedent to relief under Section 10--609. In the words of the opinion, 'The showing of neglect without a proper excuse is insufficient under both Section 10--609 and 10--1213.' 240 S.C. at 214, 125 S.E.2d at 358. Our later...
To continue reading
Request your trial
-
McEachern v. Poston, 20949
...of the lower court's order dated September 1, 1978 that permits respondent to file a delayed answer. Hedgepath v. South Carolina State Highway Dept., 263 S.C. 98, 207 S.E.2d 820 (1974). The lower court correctly recognized that even if respondent is in default, the award of actual and punit......
-
Thermal Insulation Co., Inc. v. Town & Campus, Inc., 20782
...condition precedent to relief under this code section, Lee v. Peek, 240 S.C. 203, 125 S.E.2d 353 (1962); Hedgepath v. S. C. State Highway Department, 263 S.C. 98, 207 S.E.2d 820 (1974). The sole issue involved in this appeal is whether the respondent has presented sufficient evidence of exc......
-
Worrell v. Satterfield Const. Co., Inc.
...161, 174 S.E.2d 163 (1970); Scruggs v. Ballenger Corporation, 260 S.C. 509, 197 S.E.2d 91 (1973) and Hedgepath v. South Carolina State Highway Department, 263 S.C. 98, 207 S.E.2d 820 (1974). The order of the circuit judge provides, "after hearing arguments of counsel for the parties and upo......
-
Howard v. Holiday Inns, Inc., 20741
...neglect had not been shown. It is not sufficient to show neglect unless the same be made to appear excusable. Hedgepath v. State Highway Dept., 263 S.C. 98, 207 S.E.2d 820 (1974). We agree with the lower court and affirm the court's refusal to set the default order aside. There was no abuse......