Thynes v. Lloyd
| Decision Date | 11 November 1987 |
| Docket Number | No. 1057,1057 |
| Citation | 363 S.E.2d 122,294 S.C. 152 |
| Parties | Jeanette F. THYNES, Respondent, v. Dwayne Furman LLOYD, Appellant. . Heard |
| Court | South Carolina Court of Appeals |
Robert C. Brown, of Brown & Woods, Columbia, for appellant.
John E. Miles, Sumter, for respondent.
This is an appeal prior to judgment from an order of the Circuit Court refusing to grant relief from the entry of default. We dismiss the appeal as premature.
This Court recently held: "Under the South Carolina Rules of Civil Procedure, effective July 1, 1985, an order setting aside an entry of default is not appealable until after final judgment." Ateyeh v. United of Omaha Life Insurance Co., 361 S.E.2d 340 (S.C.Ct.App.1987). Consistent with the reasoning of the Court in that case, we now hold that an order refusing to grant relief from the entry of default is not appealable until after final judgment.
Respondent Jeanette F. Thynes commenced this action against appellant Dwayne Furman Lloyd by filing and serving a summons and complaint. More than thirty days thereafter, Mrs. Thynes filed an affidavit stating that Mr. Lloyd had failed to answer or otherwise respond to the complaint as required by the Rules. After this affidavit was filed, Mr. Lloyd filed and attempted to serve a pleading which he styled "Amended Answer." Mrs. Thynes refused to accept service. Mr. Lloyd then filed and served a motion "requesting a ruling that the appellant was not in default or in the alternative that any entry of default be set aside pursuant to South Carolina Rules of Civil Procedure 55(c) or in the alternative that time for answering be extended pursuant to South Carolina Rules of Civil Procedure 6(b)." The Circuit Court denied the motion. Mr. Lloyd appeals. No final judgment has been entered in the case.
Rule 55(a) provides: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default upon the calendar (file book)." It does not appear that the clerk actually entered default in the instant case. However, whether default was actually entered is of no consequence since the entry of default is a purely ministerial act which the clerk was required to perform once the default was made to appear by the affidavit of Mrs. Thynes.
Rule 55(c) allows the Circuit Court to grant relief from the entry of default. In addition to seeking this relief explicitly, Mr. Lloyd sought, in the alternative, a ruling that he was not in default or a ruling extending the time for him to answer. A ruling that Mr. Lloyd was not in default would obviously be the same as granting him relief from the entry of default. A ruling extending the time for Mr. Lloyd to answer would necessarily require granting him relief from the entry of default. Thus, it is clear that the motion of Mr. Lloyd was a motion under Rule 55(c).
Rule 60(b) allows the Circuit Court to grant relief from a final judgment. Since no final judgment has been entered, it is equally clear that the motion of Mr. Lloyd was not a motion under Rule 60(b).
Rule 72 specifies which intermediate or interlocutory orders are appealable prior to final judgment. Among those specified is any order on a motion under Rule 60(b). No mention is made of orders on motions under Rule 55(c).
Rule 55(c) and Rule 60(b) are similar to the comparable federal rules. According to Professors Wright, Miller and Kane, the denial of a motion under Federal Rule 60(b) to set aside a default judgment is immediately appealable, but the denial of a motion under Federal Rule 55(c) to set aside an entry of default is not appealable until after final judgment. 10 C. Wright, A....
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Lanier v. Lanier, 3966.
...under Rule 59(b); .... This rule is substantially the same as the federal rule. See Rule 60, SCRCP, note ¶ 1; Thynes v. Lloyd, 294 S.C. 152, 363 S.E.2d 122 (Ct.App.1987). C. Elements for Obtaining a New Trial Under Rule 60(b)(2) To obtain a new trial based on newly discovered evidence, a mo......
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Palmetto Constr. Grp., LLC v. Restoration Specialists, LLC, Appellate Case No. 2016-002308
...the denial of a motion to set aside an entry of default is not appealable until after final judgment. Thynes v. Lloyd , 294 S.C. 152, 154, 363 S.E.2d 122, 123 (Ct. App. 1987). Appellants appeal from a motion to set aside an entry of default. Furthermore, the parties have not participated in......
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Palmetto Constr. Grp., LLC v. Restoration Specialists, LLC
...to Rule 55(c), SCRCP. Under either option, the party has no right of appeal until after final judgment. See Thynes v. Lloyd , 294 S.C. 152, 153, 363 S.E.2d 122, 122 (Ct. App. 1987) (stating an "order refusing to grant relief from the entry of default is not appealable until after final judg......
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5star Life Ins. Co. v. Peek Performance, Inc.
...was no final judgment, there was no order from which 5Star could move for relief pursuant to Rule 60(b). See Thynes v. Lloyd , 294 S.C. 152, 154, 363 S.E.2d 122, 123 (Ct. App. 1987) ("[Because] no final judgment has been entered, it is ... clear that the motion of [the appellant] was not a ......