Rogers v. McManus

• Decision Date: 31 December 1917
• Docket Number: 9836.
• Citation: 94 S.E. 732,108 S.C. 350
• Parties: ROGERS ET AL. v. MCMANUS ET AL.
• Court: South Carolina Supreme Court

94 S.E. 732

108 S.C. 350

ROGERS ET AL. v. MCMANUS ET AL.

No. 9836.

Supreme Court of South Carolina

December 31, 1917

Appeal from Common Pleas Circuit Court of Chesterfield County; Geo E. Prince, Judge.

Action by H. H. Rogers and another against A. A. McManus and another. From an order denying defendants' motion for relief from judgment, they appeal. Appeal dismissed.

Gary C.J., dissenting in part.

Miller & Lawson, of Hartsville, for appellants.

Pollock & Pegues, of Cheraw, for respondents.

GARY C.J.

This is a proceeding for relief under section 225 of the Code, on the ground of excusable neglect. The appeal is from an order refusing to modify an award and the judgment entered thereon.

The agreement to arbitrate stipulates that the arbitrators should proceed with the settlement of the differences therein mentioned, as provided in section 3953, Code of Laws 1912. It also contains the following stipulation:

"The arbitrators, or a majority of them, having decided the matters submitted to them, shall put their findings in writing, and file the same with the clerk of court of Chesterfield county, and the same shall become a judgment of the court of common pleas for said county, and the same shall be final, and no appeal shall be taken from same by either party, but the right of appeal therefrom is hereby waived by the parties hereto."

The award was as follows:

"We find that two lots in question are the property of plaintiffs, and shall be deeded to them or her forthwith also the amount of $878.24, and the amount of certain draft claimed to have been paid in payment of F. B. Thomas & Co. account shall be deducted from such cash payment, or, in absence of paid draft, a receipted invoice."

A copy of the award is set forth in the judgment entered therein. His honor the circuit judge, upon motion of the appellants' attorneys, issued a rule requiring the respondents to show cause why the said award and judgment should not be modified by allowing a deduction of $267.55 and proper abatement of any costs that may have been paid. The appellants' attorneys introduced affidavits tending to show that the arbitrators intended to allow the defendants credit for the Baltimore Bargain House claim, amounting to $217.70. On the other hand, the respondents' attorneys offered in evidence counter affidavits tending to show that such claim was allowed by the arbitrators, and deducted from the amount which they found to be due by the defendants. On hearing the return to the rule his honor the circuit judge made the following order:

"A motion is made by defendants to open the judgment herein and to credit thereon not only the $49.85 known as the F. B. Thomas & Co. claim, but also the $217.70 known as the Baltimore Bargain House claim, under section 225 of the Code and for an injunction restraining the sheriff from levying execution. The motion must be refused on the following grounds: First, the court has no authority under section 225 of the Code to open the award of arbitrators, but the remedy is by appeal; second, the award of the arbitrators became final under section 3953 of volume 1 of the Code, when no appeal was taken; third, even if the court had discretion to open this judgment, the record does not disclose such a showing as would warrant the exercise of the discretion to open the judgment, as no excusable neglect, inadvertence, mistake, or surprise of the defendants has been shown. Therefore, in the exercise of discretion alone, even if the court held that section 225 of the Code gave the power, the motion must be refused.

Further ordered that the restraining order heretofore granted by me be, and the same is hereby, set aside. The motion to refer back to arbitrators is also refused."

The defendants appealed from said order upon exceptions which it will not be necessary to consider in detail. The award was made under section 3953, Code of Laws 1912, which provides that it shall be lawful for any and all persons to submit their differences or disagreements to arbitrators in the manner therein stated. That section also contains these provisions:

"The findings of said board of arbitration shall be final: Provided, that either party to the contention shall have the right of appeal to the circuit court, by serving written notice upon the opposite party, within five days after the finding of said arbitration, setting forth the grounds of said appeal. And on such

...