Empire Mining Co. v. Propeller Towboat Co. , 60 S.C. 457 ( 1901 )

April 18, 1901. The opinion of the Court was delivered by Plaintiffs sued the defendant for $3,047.66 damages for the loss of a barge and a cargo of phosphate rock, and their suit was brought in the Court of Common Pleas for Charleston County, S.C. on the 22d day of November, 1898, and an attachment of certain of defendant's property was made in pursuance of the laws of this State. Soon thereafter a petition for removal of the cause to the Circuit Court of the United States for the State of South Carolina was filed, and by the order of Judge Benet, of the Court of Common Pleas for Charleston, S.C. said petition for removal was allowed. Thereafter a motion was made in said Circuit Court of the United States for South Carolina for the removal of said cause to the Court of Common Pleas for Charleston County, S.C. before his Honor, Judge William H. Brawley, and such Judge granted said motion in an order requiring said removal to be made forthwith. On the same day a certified copy of said order of Judge Brawley was duly filed in the Court of Common Pleas for Charleston County, S.C. and said action was thereupon placed upon the default calendar No. 3 of said last named Court, there having been filed by defendant's attorneys no notice of appearance or any pleading to said complaint. That said cause remained on said calendar until 18th April, 1900, on which day judgment was rendered by Judge Ernest Gary, who at that date was the presiding Judge of said Court of Common Pleas for Charleston, S.C., against the defendant for the sum of $3,070.66. That on the next day, 19th day of April, 1900, Messrs. Nathans Sinkler, as defendant's attorneys, without notice to plaintiff's attorneys, but in open Court, moved Judge Ernest Gary, as presiding Judge of said Court of Common Pleas for Charleston County, to vacate and set aside the verdict recovered, and order for judgment made on the said 18th day of April, 1900, on the ground that the case having been removed to the United States Circuit Court, this Court was ousted of jurisdiction. After argument on both sides, Judge Gary, by an order therefor, refused said motion. When the Court (Judge Gary) had announced his order refusing said motion, defendant's attorneys then moved the Court to vacate and set aside the verdict and order for judgment, and permit the defendant to appear and answer, on the ground that the ruling of the Court had taken them by surprise, and that they had expected to be notified by the Court if any application was made to take judgment by default. Thereupon the hearing of this last motion was adjourned until the next morning. April 20th, 1900, when each side submitted affidavits setting forth alleged verbal statements of counsel on each side. The Circuit Judge, Judge Gary, then made the following order: "On hearing the motion of defendant's counsel to set aside the verdict herein and allow defendant to answer, and after hearing the affidavits of Mr. J.N. Nathans in support of said motion and of Messrs. Julian Mitchell, jr., and Henry A.M. Smith in opposition, counsel on both sides having been heard, and it appearing to the Court that counsel for defendant were surprised at the ruling of this Court that this Court had jurisdiction of the cause: It is ordered, that if the defendant shall within twenty days from the date of this order file its answer to the complaint herein, to the merits thereof, and duly verified, then that the verdict herein and the order for judgment thereon taken and made on the 18th April, 1900, be, and the same are set aside. 20th April, 1900. Ernest Gary, presiding Judge." Thereupon the plaintiff's attorneys appealed to this Court for the purpose of having said order dated the 20th April, 1900, vacated on grounds which will be hereafter considered.

To properly understand the present status of this action it is necessary to state that the defendant, through its attorneys, Messrs. Nathans Sinkler, appealed to this Court to reverse the judgment rendered by Judge Gary on the 18th day of April, 1900, on calendar 3, upon the ground that the Court erred in holding that the Court of Common Pleas for Charleston had acquired jurisdiction of the action after removal proceedings were had by the order of Judge Brawley in the United States Circuit Court, dated 22d May, 1899, directing said removal to the State Court forthwith, in view of the fact that Judge Brawley had revoked the order of 22d May, 1899, by his order dated the 7th day of June, 1899. When this appeal came on to be heard before this Court, its judgment was rendered, whereby the judgment of the Court of Common Pleas for Charleston County against the defendant and in favor of the plaintiff for the sum of $3,070.66, was affirmed. Chisolm et al. v. The Propeller Towboat ofSavannah, Ga., 49 S.C. 549. As will be seen by Judge Ernest Gary's order appealed from herein, he has based his decision vacating his judgment of 18th April, 1900, and allowing the defendant to appear and answer, upon the mistake of defendant's counsel, and their consequent surprise, that he, Judge Gary, would hold that the Court over which he presided was not ousted of jurisdiction by the removal proceedings. We have just announced through the judgment of this Court that Judge Gary made no mistake as to the jurisdiction of his Court to render the judgment against the defendant. Under this appeal we are obliged to hold that Judge Gary erred in granting the order now appealed from in these proceedings. It was an error of law and, therefore, reviewable by this Court. No Court can successfully hold that a mistake as to law made by counsel in a cause pending in Court in which cause such counsel have neither appeared or pleaded, is good ground or legal ground to set aside a judgment. We have not reproduced the affidavits submitted on each side to the motion before Judge Gary, as no practical good could result therefrom. Verbal statements by counsel are not favored by Courts. However, our conclusion as to this contention is not influenced by such affidavits. We have not set out the grounds of appeal, because they all relate to the alleged error of Judge Gary in granting the order to vacate his judgment and allow defendant to plead over, as an error of law.

From these views I think our judgment should be. "It is the judgment of this Court that the order appealed from herein be reversed," but the majority of this Court think that the judgment of the Circuit Court should be affirmed. Although I dissent, the judgment of the Circuit Court is affirmed.

MESSRS. JUSTICES GARY and JONES dissent, and concur inthe dissenting opinion of MR. CHIEF JUSTICE McIVER.