Pruitte v. Burns

• Decision Date: 10 May 1948
• Docket Number: 16077.
• Parties: PRUITTE et al. v. BURNS et al.
• Court: South Carolina Supreme Court

47 S.E.2d 785

212 S.C. 325

PRUITTE et al. v. BURNS et al.

No. 16077.

Supreme Court of South Carolina

May 10, 1948

Hoke B. Black, of Greenville, for appellants.

W W. Wilkins, of Greenville, for respondents.

BAKER, Chief Justice.

On March 17, 1947, the respondents commenced their action against the appellants in the Greenville County Court praying judgment in the sum of $1500.00. The cause of action arose out of the sale by the appellants, to the respondents of an automobile for the sum above mentioned, which automobile was later discovered to have been stolen, and was taken from the respondents by officers of the law.

The appellants having failed to answer or otherwise plead to the complaint within the time allowed by law, the respondents on April 11, 1947, took judgment by default against them in the said sum of $1500.00, which judgment was entered and enrolled in the office of the Clerk of Court for Greenville County on April 19, 1947. Execution was forthwith issued, but remains unsatisfied.

On August 15, 1947, the appellants served (presumably on the respondents) a notice of a motion to vacate the judgment, and to permit them to file an answer to the complaint, upon the grounds of mistake, inadvertence and excusable neglect. This motion was heard upon supporting affidavits, which affidavits, on the pertinent facts, were traversed by affidavits on behalf of the respondents; and after oral arguments, Honorable W. B. McGowan, Judge of the Greenville County Court, by his order dated November 21 1947, refused to grant the relief sought by the appellants, and in these words: '* * * after due consideration I have concluded that the motion should be denied, and it is so ordered.'

The appeal raises two issues, first, were there such compelling grounds for opening or vacating the judgment that it should be held that the County Judge abused his discretion in refusing to do so, and second, have the appellants shown that they have a meritorious defense. Of course, if the first question is decided adversely to the appellants, the second question becomes immaterial. Lucas v. North Carolina Mutual Life Ins. Co., 184 S.C. 119, 191 S.E. 711; Poston v. State Highway Dept., 192 S.C. 137, 5 S.E.2d 729.

A summary of the supporting affidavits, and those contra, relative to the first issue follows.

The appellant, Eugene Burns made an affidavit that he had no connection with his brother, Wilkins Burns, in the automobile business, nor in any other business, and specifically denied that he had any interest in the automobile here involved; and 'that he relied upon his brother, Wilkins, to employ counsel and to attend to the matter, particularly in view of the fact that deponent felt that he was in nowise responsible for anything.'

The appellant, Wilkins Burns, made an affidavit that the complaint in this action was served upon him and his brother on or about March 18, 1947, at which time he (deponent) was in New York, and that he returned to Greenville on or about March 23rd; 'that his brother, Eugene Burns, turned the entire matter over to him to attend to in regard to employing lawyers and whatever was to be done in the premises' that he went to see Pruitte, one of the plaintiffs, two or three times, and the first time, neither Pruitte nor his partner, Hicks, was at their place of business, which is known as United Auto Sales; that he later telephoned to Pruitte, and told him he wanted to see what could be done about the car in question, and wanted to do the right thing, to which Pruitte replied that he didn't want a thing except his money back; that he then told Pruitte that he was willing to give to him his (the deponent's) profit back ($200.00), and divide with him equally the loss of the $1300.00 which had been paid for the car when purchased by the deponent; that Pruitte then agreed to take the matter up with his partner, Hicks, and 'see if he could not straighten the matter out'; that deponent later went to the place of business of United Auto Sales, and Pruitte told him that he had talked to Hicks 'a little about it,' and that Hicks did not have much to say; that deponent then requested Pruitte to talk further to Hicks, and he would later come to see him, and that he then informed Pruitte that he was going North again, and Pruitte stated that the three of them would discuss the matter further upon his return; that this led the deponent to believe that the matter was going to be settled, and therefore he didn't employ an attorney; that immediately upon his return, he went out to the United Auto Sales and talked to Hicks, to whom he made the same proposal of settlement he had made to Pruitte, but Hicks refused it, and said 'let the matter be settled in Court'; that the time for answering had then expired. Wilkins Burns also stated in his affidavit that his brother, Eugene Burns, had no interest in the automobile...