Jolley v. Jolly

• Decision Date: 18 December 1975
• Docket Number: No. 20134,20134
• Citation: 220 S.E.2d 882,265 S.C. 594
• Court: South Carolina Supreme Court
• Parties: Eudora JOLLEY, Appellant, v. Gene R. JOLLY, Respondent.

Page 882

220 S.E.2d 882

265 S.C. 594

Eudora JOLLEY, Appellant, v. Gene R. JOLLY, Respondent.

No. 20134.

Supreme Court of South Carolina.

Dec. 18, 1975.

Franklin W. Allen, Spartanburg, for appellant.

Donald B. Wildman, Spartanburg, for respondent.

PER CURIAM:

This action was commenced by the plaintiff, a resident of Spartanburg County, South Carolina, against the defendant, a resident of Rutherfordton, North Carolina, on April 19, 1974. It is an action to recover $2,000.00, allegedly due because the defendant failed to complete a construction job under the terms of a contract. A summons, without a complaint, was served upon the defendant at his North Carolina residence under our Long Arm Statute. The plaintiff signed a verified complaint on June 3, 1974, but same was not served upon the defendant; an affidavit of default was made November 26, 1974, and on November 27, 1974, a default judgment was entered by the Honorable Thomas J. DeZern, Judge of the Spartanburg County Court, presumably upon evidence presented.

Thereafter, the defendant was notified of the default judgment and employed counsel who petitioned the court, within one year, to vacate the default judgment under the terms of $10--1213, Code of Laws of South Carolina for 1962. That Code section reads in part as follows:

' § 10--1213. Relief from mistake, etc.; amendments.--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 and may supply an omission in any proceeding.'

After hearing argument of counsel, Judge DeZern granted the motion, vacated the judgment and allowed the defendant twenty days in which to file responsive pleadings to the complaint. The plaintiff has appealed, setting forth four exceptions.

Counsel for the defendant asked the court to dismiss the appeal upon the ground that the exceptions do not comply with § 6 of Rule 4 of this Court, inasmuch as none of the four exceptions presents a 'distinct principle or question of law' which the plaintiff claims to have been violated by the lower court. Although the exceptions might be more concise, we are of the opinion that they alert counsel for the defendant and this Court of the only real issue to be decided, which is:

Did Judge DeZern abuse his discretion in vacating the default judgment?

It should be noted that the Code section quoted hereinabove leaves the matter of whether or not the judgment should be vacated to the discretion of, not this Court, but the lower court. The case is a close one, and while this Court is not unanimous in its thinking, a majority of the Court is of the opinion that the lower court did not abuse its discretion and, accordingly, the order appealed from is affirmed. It is not sufficient to justify a reversal that we disagree. An abuse of discretion must be shown.

The showing made to the trial judge consisted of (1) affidavit of the defendant, and (2) letter of May 10, 1974, addressed to the defendant from Attorney J. S. Dockery of Rutherfordton. The affidavit reads, in part, as follows:

'On April 19, 1974, at his home, deponent was served a Summons, Complaint Not Served, by Carl M. Edwards, Deputy Sheriff for the County of Rutherfordton, North Carolina. The Summons, Complaint Not Served, was dated March 22, 1974, and was signed by Franklin W. Allen, Attorney at Law, in Spartanburg, South Carolina. Deponent inquired of Deputy Edwards, a personal friend, as to the legal effect of this document. The deputy advised him that as he understood the paper, it was of no legal effect without some further notification as to the nature of the claim. Deputy Edwards further suggested that deponent see an attorney about the matter. The Affidavit of Service signed by Deputy Edwards was sworn to on May 6, 1974.

'Deponent then consulted J. S. Dockery, attorney at law in Rutherfordton, North Carolina, and presented Mr. Dockery with the Summons, Complaint Not Served, which he had received. Mr. Dockery advised that although he did not know the South Carolina Law on this matter, under North Carolina law, the instrument defendant had received was worthless and without compulsory legal effect. Mr. Dockery told deponent there was significance in the fact that the Summons was signed by an attorney rather than a judge, that Mr. Franklin W. Allen was not listed in his Martindale-Hubbell as a Spartanburg attorney, and that absolutely no notice as to the nature of this action was presented to the defendant. He warned deponent to be careful to neither file any papers in the case nor go to South Carolina and thereby expose himself to possible personal service of a local Summons. He advised that any formal inquiry into the matter might be construed as a submission to the jurisdiction of the South Carolina Court. A suggestion that a reliable friend in Spartanburg might check the Court House to determine the basis of the claim was made, but such informal action would have proved fruitless, since no papers were filed in the Court House until November 26, 1974. A brief memorandum of parts of the conversation with Mr. Dockery is attached hereto.

'On the basis of this legal advice and his ignorance of Mrs. Jolley's claim, deponent viewed the Summons either as a trick to cause him to go to South Carolina and expose himself to personal service within the State, or as a formal proposal by an attorney in Spartanburg to set up a meeting between the plaintiff and deponent. He assumed that no law would allow a mere attorney in Apartanburg to demand the presence and participation of a working North Carolina resident in a lawsuit in Spartanburg, South Carolina, without giving any notification of the nature of the claim and causing the defendant to incur travel and legal expenses simply to determine whether or not a colorable claim had been made.'

The plaintiff submitted nothing in response to the motion. Accordingly, the showing is undisputed.

Counsel for the appellant-plaintiff argues that the mistake is one of law and not one of fact, and accordingly that the trial judge erred in granting relief. On the other hand, counsel for the respondent-defendant submits that the case comes clearly within § 10--1213 and involves a question of fact. There is oftentimes a delicate line between questions of law and of fact. The cases involving vacation of judgment are legion in this State. Many have granted relief, and many have denied relief. Much must be left to the trial judge's discretion, and that is particularly true in this case, where the same judge who heard the evidence and granted the judgment has made the determination that the same should be set aside.

Under our practices, actions may be commenced by the service of a summons (§ 10--401) without a complaint (§ 10--633), but the traditional summons used in this State, which is quoted in the cases of Rochester v. Holiday Magic, Inc., 253 S.C. 147, 169 S.E.2d 387 (1969), and Brown v. Weathers, 251 S.C. 67, 160 S.E.2d 133 (1968), is a very poor vehicle for alerting a layman to what is involved. Under our practice, once jurisdiction is acquired by the service of a summons alone, no complaint need be served upon the defendant. It is sufficient if the summons advise the defendant where the complaint will be filed. Accordingly, when an action is commenced by the service of a summons only, resulting in a default judgment, the defendant usually does not know the nature of the claim until he is advised of the judgment.

It was incumbent upon the defendant to prove to the satisfaction of the trial judge (1) that the judgment was taken against him through his mistake, inadvertence, surprise, or excusable neglect, and (2) that he has a meritorious defense. The showing...