O'Neal v. Atlas Assur. Co. of London, England

• Decision Date: 09 January 1933
• Docket Number: 13551.
• Citation: 167 S.E. 227,168 S.C. 174
• Parties: O'NEAL v. ATLAS ASSUR. CO. OF LONDON, ENGLAND.
• Court: South Carolina Supreme Court

167 S.E. 227

168 S.C. 174

O'NEAL v. ATLAS ASSUR. CO. OF LONDON, ENGLAND.

No. 13551.

Supreme Court of South Carolina

January 9, 1933

Appeal from Common Pleas Circuit Court of Marion County; S.W. G Shipp, Judge.

Action by B. B. O'Neal against the Atlas Assurance Company of London, England. Judgment for plaintiff entered in the magistrate's court was affirmed by the circuit court, and defendant appeals.

Affirmed.

Joseph L. Nettles, of Columbia, for appellant.

J. C Hooks, of Mullins, and M. C. Woods, of Marion, for respondent.

BONHAM J.

The narrative of the facts which lead to this appeal furnishes evidence of the troubles which arise when counsel fail to put in writing their agreements relating to a cause and its trial.

In the present case, the respondent brought action in the magistrate's court at Mullins. The defendant, appellant here, was duly served. Counsel for defendant resides in Columbia. He and the plaintiff's counsel, who lives at Mullins, had some arrangement, made by telephone and conversation, by which counsel for the defendant understood that the case would not be called for trial until counsel for the defendant had an opportunity to investigate the matter and go over to Mullins for trial or settlement. The return day was June 7th. Not having heard from counsel for the defendant, plaintiff's counsel thought he was justified in proceeding, and had the case called for trial on June 13th. The defendant was not represented at the trial. The magistrate impaneled a jury, heard the testimony of the plaintiff, and the jury returned a verdict in plaintiff's favor. The judgment was transcripted to the office of the Clerk of Court on September 17th. When counsel for the defendant learned of these matters some months afterward, he caused to be served notice and grounds of appeal. The appeal was heard by Circuit Judge Shipp, who affirmed the magistrate's judgment. From the order of Judge Shipp, the defendant has brought the case to this court by appeal.

Judge Shipp's reasons for affirming the judgment of the magistrate, stated in our language, were as follows: The plaintiff proved his case, and the jury rendered a verdict in his favor; transcript of the judgment was lodged in the clerk's office; the appeal was not taken within five days after rendition of the judgment, and no motion for a new trial was made in the magistrate's court; there was nothing in the record to indicate that the defendant was only guilty of excusable neglect, and the defendant had not availed itself of the remedies provided by law in the magistrate's court; and it was too late to move in the circuit court.

We cannot agree with the holding of Judge Shipp to the effect that the defendant did not proceed in the proper manner to obtain the relief it sought. By section 795 of the Code, the appellant had "five days after written notice of judgment" had been "given him or his attorney by the magistrate," since the appellant, or its attorney was not present when the magistrate's judgment was announced. In fact, it does not appear from the record that written notice has yet been given the...