Wise v. First National Insurance ( 1934 )

The opinion of the Court was delivered by

Mr. Justice Stabler.

This action, commenced April 15, 1933, by the service of summons and complaint through the insurance commissioner’s office, was.brought by the plaintiff to enforce the collection of certain sick benefits which she alleged were due her under a policy of health and accident insurance issued by the defendant company. The defendant having failed to answer or otherwise plead in the time required by law, judgment by default was taken against the company. Immediately thereafter, counsel for the defendant made an affidavit setting forth the reasons for failure to answer, and moved to open up the judgment on the grounds of excusable neglect and inadvertence, stating in his affidavit certain defenses relied upon. Two hearings of the matter were had before the Honorable M. S. Whaley, Judge of the County Court of Richland County, and two separate orders were made by him. Certain exhibits, including the policy of insurance, the application for the policy, proof of disability, and the correspondence between the plaintiff and the defendant, etc., upon which the company’s defenses were based, were considered by the Court, along with the affidavit filed, and were made a part of the record.

At the conclusion of the first hearing, Judge Whaley passed an order, dated May 22, 1933, in which he refused to reopen the judgment, but reserved for his own considera tion the question of construction of the policy as affecting' the plaintiff’s legal right to recover for the last period of illness alleged in the complaint. On May 31, 1933, arguments on this question were heard, and on June 2, 1933, the County Judge filed an order in which he held that the defendant’s purported defenses were not meritorious and that the company could not prevail in its contention. He, therefore, refused the motion to vacate the judgment and for an extension of time to answer. From the two orders mentioned this appeal is taken.

The respondent makes the point that the appeal should be dismissed because the exceptions do not aver that there was an abuse of discretion in refusing .to reopen the judgment. Even if this contention should not be sustained, we find, upon consideration of the record before us, no error as complained of. The Court is of opinion that the questions raised by the exceptions have been correctly answered and disposed of by the County Judge.

The orders appealed from are affirmed.

Note: Let the order of May 22, 1933, and the order of June 2, 1933, be incorporated in the report of the case.

Mr. Chief Justice Befase and Messrs. Justices Carter and Bonham and Mr. Acting Associate Justice W. C. Cothran concur.