Southland Mobile Homes of South Carolina, Inc. v. Associates Financial Services Co., Inc., 21191

• Citation: 274 S.C. 488,265 S.E.2d 258
• Decision Date: 09 April 1980
• Docket Number: No. 21191,21191
• Parties: SOUTHLAND MOBILE HOMES OF SOUTH CAROLINA, INC., Respondent, v. ASSOCIATES FINANCIAL SERVICES COMPANY, INC., and Mellon Bank, N. A., Defendant, of which Mellon Bank, N. A., is Appellant, and Associates Financial Services Company, Inc., is a Respondent.
• Court: South Carolina Supreme Court

Page 258

265 S.E.2d 258

274 S.C. 488

SOUTHLAND MOBILE HOMES OF SOUTH CAROLINA, INC., Respondent, v. ASSOCIATES FINANCIAL SERVICES COMPANY, INC., and Mellon Bank, N. A., Defendant of which Mellon Bank, N. A., is Appellant and Associates Financial Services Company, Inc., is a Respondent.

No. 21191.

Supreme Court of South Carolina.

April 9, 1980.

Charles W. Knowlton, Francis P. Mood and Hamilton Osborne, Jr., all of Boyd, Knowlton, Tate & Finlay, Columbia, for appellant.

M. M. Weinberg, Jr. and Robert W. Brown, both of Weinberg, Warner, Brown & McDougall, Sumter, for respondent Southland Mobile Homes of South Carolina.

Donald E. Rothwell, Columbia, for respondent Associates Financial Services, Co., Inc.

LITTLEJOHN, Justice:

The appeal before us grows out of a default judgment granted the plaintiff, Southland Mobile Homes of South Carolina, Inc., in the amount of $742,424.29. The history of the proceedings is set forth in the agreed statement of facts, which we quote, as follows:

"This action was brought by Southland Mobile Homes of South Carolina, Inc. ('Southland') against Associates Financial Service Company, Inc., ('Associates') and Mellon Bank, N.A., ('Mellon Bank') to recover damages for an alleged breach of contract. Associates cross-claimed against Mellon Bank. Through a Special Appearance, Mellon Bank challenged the jurisdiction of the South Carolina courts on the basis of the provisions of the National Banking Act.

"The Trial Court, by its Order dated February 16, 1977, concluded that Mellon Bank was properly before the Court, and counsel for Mellon Bank, J. Wesley Drawdy (now substituted), timely served notice of intention to appeal. A proposed case and exceptions was properly served on counsel for Associates but was not served on counsel for Southland until March 30, 1977, which was two (2) days beyond the thirty (30) days provided for such service. Therefore, counsel for Southland moved to have the appeal dismissed as to Southland. The Trial Court dismissed Mellon Bank's appeal as to that party by its Order dated May 9, 1977, from which appeal was timely taken by Mellon Bank, contending that the dismissal was in error and that the original appeal on the issues of jurisdiction and venue should be heard by the South Carolina Supreme Court. The appeal from the February 16, 1977, and May 9, 1977, Orders of the Trial Court were heard by the Supreme Court of South Carolina, which on April 3, 1978, filed Opinion Nos. 20654 (270 S.C. 525, 244 S.E.2d 211) and 20655 (270 S.C. 527, 244 S.E.2d 212) affirming the Orders of the trial court dismissing the appeal as to Southland and sustaining the jurisdiction and venue of the Court of Common Pleas for Sumter County. Petitions for rehearing on both opinions were denied, and remittitur returned to the Trial Court on May 10, 1978.

"J. Wesley Drawdy, as counsel for Mellon Bank, prepared an answer dated April 12, 1978, which was served on counsel for Southland on April 13, 1978.

"In the interim, on April 12, 1978, the Honorable Dan F. Laney, Jr., on motion of Southland and without notice to Mellon Bank, entered an order of default against Mellon Bank and set a hearing for June 5, 1978, to ascertain damages to be assessed against the bank. By motion dated April 24, 1978, amended May 18, 1978, Mellon Bank moved the Circuit Court to set aside the order of default and allow Mellon Bank to answer or otherwise plead. An answer of Mellon Bank was also attached to its amended motion to set aside the order of default. The amended motion and the answer were served on counsel for Southland on May 18, 1978.

"By motion dated May 19, 1978, Mellon Bank moved to postpone the scheduled hearing on damages and for permission to conduct discovery as to damages.

"At the call of the case, on June 5, 1978, the Court heard arguments on Mellon Bank's motion to set aside the order of default. The grounds argued in support of this motion were: (a) the answer of Mellon Bank was timely; (b) the Circuit Court was without jurisdiction at the time of plaintiff's petition for an order of default and the Court's order; (c) Mellon had no notice of plaintiff's petition for an order of default and there was, thus, no hearing thereon; and (d) in the alternative, the default judgment should be set aside because of inadvertence, surprise, misunderstanding and excusable...