Lee v. Peek

Lewis, Justice

(concurring in result).

I concur in the result of the opinion of Mr. Justice Bussey because the record fails to show an abuse of the discretion vested in the Court under the provision of Section 10-609 of the 1952 Code of Laws, but I arrive at the conclusion on somewhat different grounds. Disagreement with the wide distinction apparently drawn between the basis for granting-relief under Section 10-609 and Section 10-1213 necessitates, a statement of the reason for my concurrence.

While some of the decisions cited in the opinion of Justice Bussey refer to the discretion of the court as unlimited, it is recognized that this is not entirely true, for the exercise of discretion under Section 10-609 may be reviewed by this Court upon a showing of a clear abuse thereof. Of course, no hard and fast rule for the exercise of discretion can be stated, but the prior decisions of this Court afford some guide for its exercise in cases, as here, where application is made for relief under the foregoing section because of the neglect of an attorney in handling litigation for his client.

The discretion vested in the lower Court must be exercised within the meaning and scope of Section 10-609 as interpreted by this Court. Under this section, as heretofore applied, relief may be granted where the default is due to the excusable fault of the attorney. Bishop v. Jacobs, 108 S. C. 49, 93 S. E. 243. As stated in the Bishop case, the foregoing section “provided a way of escape in the event of an excusable default.” Every neglect, mistake or inadvertence of counsel is not excusable. The case of Simon v. Flowers, 231 S. C. 545, 99 S. E. (2d) 391, 394 involved a motion for relief before judgment from the neglect of the attorney. Relief was denied in that case and the following principle was quoted with approval:

“Although a wide discretion is vested in courts to set aside or vacate judgments because of the neglect, misconduct or inadvertence of counsel employed in the case, the general rule undoubtedly is that the neglect of the attorney is the neglect of the client, and that no mistake, inadvertence or neglect attributable to an attorney can be successfully used as a ground for relief, unless it would have been. excusable if attributable to the client. The acts and omissions of the attorney in such case are those of the client.”

The granting of relief from default has been held proper where the litigant promptly employed counsel, who took prompt steps to protect the interests of his client and diligently pursued a course which he conceived to be proper practice, but allowed his client to get in default through a mistake as to the proper procedure. Such is the case here. McGhee v. One Chevrolet Sedan, 235 S. C. 37, 109 S. E. (2d) 713; Savage v. Cannon, 204 S. C. 473, 30 S. E. (2d) 70; Johnson v. Finger, 102 S. C. 354, 86 S. E. 673; McSween v. Windham, 77 S. C. 223, 57 S. E. 847.

However, the mistake, inadvertence or neglect of counsel has been held insufficient grounds for relief where default results from inaction of counsel on behalf of the client or failure to exercise due diligence in the protection of the client’s interest. Strickland v. Rabon, 234 S. C. 218, 107 S. E. (2d) 344; Simon v. Flowers, supra, 231 S. C. 545, 99 S. E. (2d) 391; Poston v. State Highway Department, 192 S. C. 137, 5 S. E. (2d) 729; Hartford Fire Insurance Co. v. Sightler, 131 S. C. 241, 127 S. E. 13; Claussen v. Johnson, 32 S. C. 86, 11 S. E. 209.

While it is true that in all of the foregoing decisions and those cited in the opinion of Justice Bussey the Court recognized the broad discretion vested in the trial court under Section 10-609, the principle was also recognized that the area in which the judicial discretion might move under Section 10-609 was limited by the necessity of a finding of excusable neglect or fault. In the cited case of Simon v. Flowers, it was stated that the same principles govern our review of Circuit Court orders under Section 10-609 as under Section 10-1213, citing Morgan v. State Farm Mutual Insurance Co., 229 S. C. 44, 91 S. E. (2d) 723. See also: Ward v. Miller, et al., 230 S. C. 288, 95 S. E. (2d) 482; Holliday v. Holliday, 235 S. C. 246, 111 S. E. (2d) 205. The showing of neglect without a proper excuse is insufficient under both Section 10-609 and 10-1213.

The record shows a meritorious defense to the action.

The order under appeal should be affirmed because the appellant has failed to show wherein the lower Court abused its discretion in holding that excusable fault had been shown.

Taylor, C. J., Moss, J., and Legge, Acting J., concur.