Hodges v. Fanning

• Court: South Carolina Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Hodges v. Fanning, 224 S.E.2d 713, 266 S.C. 517 (S.C. 1976)
• Decision Date: 04 May 1976
• Docket Number: No. 20212,20212
• Parties: Ray C. HODGES, Respondent, v. William S. FANNING and Birobal Corp., Appellants. Carolyn B. HODGES, Respondent, v. William S. FANNING and Birobal Corp., Appellants.

Page 713

224 S.E.2d 713

266 S.C. 517

Ray C. HODGES, Respondent, v. William S. FANNING and Birobal Corp., Appellants.

Carolyn B. HODGES, Respondent, v. William S. FANNING and Birobal Corp., Appellants.

No. 20212.

Supreme Court of South Carolina.

May 4, 1976.

Grimball & Cabaniss, and Malcolm M. Crosland, Charleston, for appellants.

Stuckey & Wise, Charleston, for respondents.

PER CURIAM:

Plaintiffs-respondents, Ray and Carolyn Hodges, obtained orders of default against defendants-appellants, William Fanning and Birobal Corp. Defendants' motion to vacate the orders was denied by the lower court. We affirm.

The motion to vacate the default orders was made under S.C.Code § 10--1213 (1962), which authorizes the court in its discretion to relieve a party from an order 'taken against him through his mistake, inadvertence, surprise or excusable neglect.' Additionally, the moving party must have a meritorious defense. Evans v. Fiat-Roosevelt Motors, Inc., S.C., 222 S.E.2d 282 (1976).

In support of their motion, defendants introduced several affidavits from which the following appears: On June 27, 1975, Ray Hodges was struck by an automobile operated by defendant Fanning and owned by defendant Birobal Corp. On July 9, 1975, defendants were personally served with a summons and complaint in actions brought by Hodges for personal injuries, and by his wife for loss of consortium as a result of the accident. Defendants turned the suit papers over to their personal attorney who on July 14, 1975 delivered them to the liability insurance carrier of Birobal Corp. The insurance carrier subsequently engaged local counsel who, after conferring with defendants' personal attorney, prepared and forwarded to him on July 17, 1975, the answers in the two actions for his approval.

Defendants' personal attorney stated in his affidavit that he reviewed and signed the answers and told his secretary to return them to the attorney who prepared them. He then stated that his secretary 'had an illness in her family and missed several days from work', and on July 31, 1975 he discovered that the answers had not been returned. The attorney to whom the answers were to be returned stated in his affidavit that he left for vacation on July 25, 1975, and did not return to his office until August 7, 1975.

No showing was made by plaintiffs to contradict these facts contained in defendants' affidavits. Affidavits submitted by them showed an overwhelming responsibility on the part of Fanning for the injuries sustained by Hodges.

Orders of default in both actions were issued on July 30, 1975, and defendants' motion for relief from them was made on August 1, 1975 and denied on September 13, 1975 by the lower court.

The lower court held that the reasons given for the failure of defendants to file timely answers were insufficient to warrant setting aside the default orders on the grounds of mistake, inadvertence, surprise, or excusable neglect. Defendan...