Small v. Mungo, 19080

• Citation: 254 S.C. 438,175 S.E.2d 802
• Decision Date: 14 July 1970
• Docket Number: No. 19080,19080
• Parties: W. Ronald SMALL, Appellant, v. Thomas W. MUNGO, d/b/a Mungo Construction Co., Respondent.
• Court: United States State Supreme Court of South Carolina

Page 802

175 S.E.2d 802

254 S.C. 438

W. Ronald SMALL, Appellant, v. Thomas W. MUNGO, d/b/a Mungo Construction Co., Respondent.

No. 19080.

Supreme Court of South Carolina.

July 14, 1970.

E. E. Wolfe, Jr., Pageland, for appellant.

James I. Redfearn, Chesterfield, for respondent.

LEWIS, Justice:

The question to be decided is whether the lower court erred in dismissing the present action with prejudice for failure of plaintiff or his counsel to appear when the cas was called for trial.

This action was instituted in the Court of Common Pleas for Chesterfield County on January 20, 1969 and was placed on the trial roster of cases to be disposed of at a term of court commencing on Monday, October 27, 1969. Counsel for both plaintiff and defendant were present in court on Monday morning, at which time the cases listed on the trial roster were called, and ten (10) cases were noted for jury trial ahead of the present case. The ten preceding cases were disposed of and this case was reached for trial at 10 A.M. on Tuesday morning, the second day of the term. Neither plaintiff nor his counsel was present at that time, but defendant's counsel was present and announced that defendant was ready for trial. Plaintiff's counsel, who was in Pageland, South Carolina about twenty miles away, was called by the Clerk of Court, at the direction of the trial judge, and told that the court was ready to proceed with the case. In response, counsel for plaintiff requested the clerk to inform the court that it would be impossible for him to contact plaintiff and his witnesses and be ready for trial before 2 P.M. on that date. Upon being so informed, the trial judge, at 10:50 A.M., on the same day, upon defendant's motion, dismissed the action with prejudice for failure of plaintiff or his counsel to appear and prosecute the action when it was reached for trial. Subsequently, plaintiff moved, during the term of court, to vacate the order of dismissal upon the ground that his failure to appear for trial was not due to unreasonable neglect on his part or that of his counsel. The motion was denied on November 10, 1969 and this appeal by plaintiff followed. The foregoing constitutes the entire factual showing in the record.

While it is within the inherent power of the court to dismiss an action for failure to prosecute, 24 Am.Jur.2d, Dismissal, Discontinuance, and Nonsuit, Section 59, such power is expressly conferred under the terms of § 10--1502 of the 1962 Code of Laws, which provides that the court may dismiss the complaint in a pending action 'with costs in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff * * * to proceed in the cause against the defendant or defendants served.'

The question of whether an action should be dismissed under the foregoing section for failure to proceed is left to the discretion of the circuit judge and his decision will not be disturbed except upon a clear showing of an abuse of such discretion.

Under Rule 86 of the Circuit Court Rules, 'all cases for jury trial during a Common Pleas Court shall be set for trial on the trial roster without regard to the days of the week, and each Trial Judge at the beginning of the term, shall plan the roster and set the cases so as to utilize the time of the court for disposition of a maximum of cases.'

Prior to the adoption of the foregoing rule, cases were usually placed, in advance of the term, on the trial roster for disposition on certain days during the term and cases could not be tried until the day set. With the adoption of Rule 86 the above practice was changed and the trial judge...