Ishmell v. South Carolina Highway Dept.

• Citation: 264 S.C. 340,215 S.E.2d 201
• Decision Date: 14 May 1975
• Docket Number: No. 20012,20012
• Court: United States State Supreme Court of South Carolina
• Parties: Andrew ISHMELL, Respondent, v. SOUTH CAROLINA HIGHWAY DEPARTMENT and Captain Cecil Dilworth, Appellants.

Page 201

215 S.E.2d 201

264 S.C. 340

Andrew ISHMELL, Respondent, v. SOUTH CAROLINA HIGHWAY DEPARTMENT and Captain Cecil Dilworth, Appellants.

No. 20012.

Supreme Court of South Carolina.

May 14, 1975.

Atty. Gen. Daniel R. McLeod, Deputy Atty. Gen. Joseph C. Coleman and Staff Atty. Richard P. Wilson, Columbia, for appellants.

John S. DeBerry, Florence, for respondent.

LITTLEJOHN, Justice:

On September 2, 1973, the respondent, Andrew Ishmell, was arrested and charged with driving a motor vehicle while under the influence of intoxicants, in violation of South Carolina Code § 46--363. He retained counsel and was tried on September 11 before Magistrate W. E. McLeod; a mistrial resulted.

On April 17, 1974, the magistrate mailed the respondent a letter, addressed to him at his correct address, notifying him that the case would be tried again on April 26, 1974. Neither the respondent nor his attorney appeared at the appointed time and place. The magistrate then conducted a trial In absentia, found the respondent guilty, imposed a fine of $100 and applied the bond previously posted to the payment of the fine.

The South Carolina Highway Department was notified of the conviction and, as required by law, notified the respondent, by order dated May 16, 1974, that his driver's license had been suspended. No appeal from the conviction was taken.

The agreed statement of facts, which is finding upon the parties, includes a sentence as follows: 'On July 25, 1974, upon affidavit of the Petitioner-Respondent's attorney dated July 25, 1974, Without notice to the State or a hearing being held in the matter, Magistrate McLeod issued his order granting a new trial in the matter upon the ground that neither the Petitioner-Respondent nor his attorney was notified of the time and date of the trial held on April 26, 1974.' (emphasis added)

The record does not clearly indicate the date upon which the Highway Department's order of May 16, 1974, was received by the respondent, nor does it clearly indicate the date upon which the oral motion for a new trial was made. The affidavit upon which the motion was granted is dated July 25, 1974.

Armed with the magistrate's new-trial order, respondent's counsel petitioned Judge W. T. McGowan, Jr., of the Civil and Criminal Court of Florence County, in a new action, to enjoin the Highway Department from further suspending the respondent's license until the case could be tried again in the magistrate's court.

On August 1, 1974, Judge McGowan issued his order holding that the magistrate's order was valid on its face, and granting the relief under the authority of Brewer v. South Carolina State Highway Dept., 261 S.C. 52, 198 S.E.2d 256 (1973).

The Highway Department has appealed, submitting that Judge McGowan erred in giving legal effect to the magistrate's new-trial order and in lifting the driver's license suspension.

As indicated hereinabove, it has been agreed that the order of the magistrate was procured without notice to the State. We held in State v. Best, 257 S.C. 361, 186 S.E.2d 272 (1972), that an order which involved the State was granted improvidently because it was without notice and could be set aside on the ground alone. The respondent is in the uncomfortable position of defending Judge McGowan's order, which admittedly was based upon the magistrate's order improvidently granted.

In Brewer, supra, a trial was held in magistrate's court without notice to the accused. He moved for a new trial within five days after he was...