McDaniel v. Addison

• Decision Date: 28 September 1898
• Citation: 31 S.E. 226,53 S.C. 222
• Parties: McDANIEL v. ADDISON et al.
• Court: South Carolina Supreme Court

31 S.E. 226

53 S.C. 222

McDANIEL v. ADDISON et al.

Supreme Court of South Carolina

September 28, 1898

Appeal from common pleas circuit court of Greenwood county; James Aldrich, Judge.

Action by Lucius McDaniel against E. S. Addison and others. From an order denying motion of defendant E. S. Addison to be allowed to answer after default, he appeals. Affirmed.

Pope J., dissenting.

Sheppards & Grier, for appellant.

Giles & Magill, for respondent.

McIVER C.J.

This is an appeal from an order of his honor, Judge Aldrich, refusing a motion on behalf of the appellant (the other defendants not participating therein) for leave to answer after the expiration of the 20 days allowed for that purpose. The conceded facts are that appellant was served with a copy of the summons, which was in the usual form, together with the complaint, on the 6th day of July, 1897, and that appellant served no answer within 20 days from that date. Within a short time after the expiration of the 20 days, the appellant, through his attorneys, applied to the attorney for plaintiff, to consent to the filing of his answer, which was refused. On the 1st of September, 1897, appellant, through his attorneys, gave notice of a motion, to be made at the next ensuing term of the court, for leave to serve the answer, stating in the notice that the motion would be made on the affidavit of the appellant, his proposed answer together with the affidavit of W. P. Greene and W. G. Chafee, Esqs attorneys at law, copies of which were served with the notice of the motion. This motion was heard by Judge Aldrich, on the 30th of November, 1897, upon the paper above stated, and upon the affidavit of E. S. F. Giles, Esq., attorney for plaintiff, submitted on behalf of the plaintiff. At the hearing, his honor granted an order refusing the motion. On the 2d of December, 1897, appellant applied for, and obtained, a rehearing of the motion, at which rehearing the motion was heard on the same papers above mentioned, and three additional affidavits submitted on behalf of appellant. The motion was again refused by an order bearing date 2d of December, 1897; and from this order the present appeal is taken, upon the several grounds set out in the record, which need not be stated here, as they substantially raise the single question whether there was an abuse of discretion in refusing the motion.

The motion is based upon section 195 of the Code of Civil Procedure, which provides, among other things, that the court may, "in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or, by an order, enlarge such time." It is manifest, therefore, from the express terms of the statute, that a motion of this character is addressed to the discretion of the circuit court, and is not, therefore, ordinarily applicable; for as was said by the late Chief Justice Simpson, in Truett v. Rains, 17 S.C. 451, and quoted with approval in the very recent case of Michalson v. Rountree (S. C.) 29 S. E., at page 67: "As a general rule, where a court or judge is invested with power to be exercised at discretion, such power is absolute, and, when exercised, it is final. From the very meaning of the term and the nature of the power, discretion is unlimited. It is bounded by no rule except the good sense and integrity of the party empowered to exercise it, and, in the absence of an express right to appeal, it necessarily follows that its exercise is unappealable." While this is, undoubtedly, the general rule, our cases, some of which have been cited in the argument of counsel, recognize, at least, one exception, and that is where there has been an abuse of discretion. Of course, this court would not assume that any circuit judge has been guilty of abuse of discretion confided to him by law; and hence, whenever an appeal has been taken upon this ground, the burden rests upon the appellant to show that there has been abuse of discretion.

In the light of these principles, we will proceed to examine the papers upon which the circuit judge acted in this case, all of which are set out in the "case," and have been carefully examined. The pleadings used at the hearing do not it seems to us, throw any light upon the question which we are called upon to determine; for, where a party makes an earnest effort to repair his default in answering, we would be disposed to assume that the defendant had, or, at least, supposed he had, a good defense to the action brought against him; but the question before the circuit judge was whether he had made such a showing as would justify him, in the exercise of his discretion, in allowing defendant to repair an admitted default in making his defense at the time and in the manner plainly and distinctly prescribed by law; and the question before this court is whether the circuit judge has abused the discretion confided to him. With this view we will proceed to examine the showing made by appellant. In the first affidavit of the appellant he says that, when the summons and complaint were served upon him, "he read the same, but did not understand that it was required of him to interpose an answer thereto, but was honestly of the belief that nothing by him was to be done until the fall term of the court, when he expected to have his attorneys take charge of the same for him; that the deponent has spent most of his life far removed from any court-house town, where such matters are generally discussed, and is entirely unfamiliar with such matters, and did not know that an answer had to be filed in order that he might make his defense to plaintiff's alleged cause of action." He then goes on to reiterate that he did not know it was necessary to file an answer, and, if he had known or even suspected as much, he would not have allowed the time to pass, but would immediately have taken the papers to his attorneys, to be by them attended to, and denies that his default was due to any carelessness or neglect, but solely to his lack of knowledge and proper understanding of the papers served upon him. He also avers that he has a good defense to the action, as set forth in his proposed answer. The only other affidavit submitted on behalf of appellant at the first hearing is that of Messrs. Greene and Chafee, in which they say they are practicing attorneys at the Greenwood bar, and that, after reading the appellant's proposed answer, they are of opinion that a good defense is stated therein. On the other hand, the affidavit of E. S. F. Giles, Esq., was submitted on behalf of plaintiff, in which, among other things, he says that, soon after the time for answering had expired, he had a conversation with the defendant F. V. Cooper, who expressed great surprise that Addison had failed to answer, adding "that the said Addison, soon after the summons and complaint were served upon him, tried to persuade him, the said F. V. Cooper, to assist him in the employment of counsel to answer said complaint; that the defendant F. V. Cooper told E. S. Addison that he was bomb proof and independent of execution, that nothing could be made out of him on a judgment; and he advised the defendant Addison to answer the said complaint within twenty days, and told him that he did not expect to bother about it, and that he would pay no part of any attorney's fee." Mr. Giles further states that he is informed and believes that Addison "is a man of considerable education, of large experience in business matters, and superior advantages for a man not engaged in...