Royal-Liverpool Ins. Group v. McCarthy

• Decision Date: 07 March 1956
• Docket Number: ROYAL-LIVERPOOL,No. 17128,17128
• Citation: 229 S.C. 72,91 S.E.2d 881
• Court: South Carolina Supreme Court
• Parties: INSURANCE GROUP, Appellant, v. J. A. McCARTHY, Jr., doing business as Abbeville Motors, Respondent.

Page 881

91 S.E.2d 881

229 S.C. 72

ROYAL-LIVERPOOL INSURANCE GROUP, Appellant, v. J. A. McCARTHY, Jr., doing business as Abbeville Motors, Respondent.

No. 17128.

Supreme Court of South Carolina.

March 7, 1956.

Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, for appellant.

Mars & Mars, Abbeville, for respondent.

STUKES, Chief Justice.

Appellant brought this action against respondent for damages for conversion of an automobile to which appellant had title by subrogation. The summons and complaint were served on January 29, 1955, and respondent defaulted. The case was heard by the presiding judge of the circuit at Laurens on March 14, 1955, evidence was taken in behalf of appellant and judgment rendered against respondent in the sum of $1,950 and costs; he attended the hearing but was without counsel and offered no evidence.

After entry of judgment and steps by appellant to collect it, respondent employed counsel who moved on March 28, 1955, before the resident judge of the circuit for an order opening the default and allowing answer under the terms of Section 10-1213 of the Code of 1952. The motion was made upon the affidavit of respondent to the effect that the summons and complaint were served at his place of business upon his bookkeeper, in his absence, and shortly thereafter called to his attention, but on account of his pressing business as an automobile dealer and in procuring contracts for clearing rights of way, bidding on jobs, and traveling to Charleston to obtain the admission of his son into the medical college, he was away on several trips, for which reasons he failed to answer the summons and complaint. It was alleged for a claimed defense to the action that his predecessor in business, whom he bought out, purchased the automobile at an auction sale on March 28, 1949, and he sold it to one Frank Miller on July 1, 1949, (it was admitted in oral argument of the appeal that the sales price was $1,950); respondent reacquired the automobile from Miller and sold it on June 13, 1953, to one Robert Belcher, in whose possession it was destroyed by accident.

By order dated May 1955, the court vacated the judgment upon the conclusions that respondent was an innocent purchaser, appellant delayed bringing the action and the value of $1,950 was established for the 1947 model Chevrolet automobile.

The order must be reversed. Relief from default on account of mistake, inadvertence, surprise or excusable neglect is within the discretion of the court, Morgan v. State Farm Mutual Ins. Co., S.C., 91 S.E.2d 723, and the exercise of such discretion will not be disturbed on appeal in the absence of abuse or error of law. However, a prerequisite for relief from a default judgment is a prima facie showing of a meritorious defense. Gaskins v. California Ins. Co., 195 S.C. 376, 11 S.E.2d 436. Savage v. Cannon, 204 S.C. 473, 30 S.E.2d 70. Jenkins v. Jones, 208 S.C. 421, 38 S.E.2d 255. Marthers v. Hurst, 226 S.C. 621, 86 S.E.2d 581. As was said in the Gaskins case, it is logical to first consider the sufficiency of the alleged grounds for vacating the judgment, but in this case it affirmatively appears from respondent's affidavit that he had no defense to the action, so that feature only need be considered. The other is passed over without intimation of opinion.

It appears that the automobile was stolen and respondent's disposition of it clearly amounted to a conversion for which he is liable in damages to the appellant--the owner. Harris v. Saunders, 2 Strob Eq. 370; Ladson v. Mostowitz, 45 S.C. 388, 23 S.E. 49; Crosland v. Graham, 83 S.C. 228, 65 S.E. 233; Bingham v. Harby & Co.,...