Broughton v. Jaffee

273 S.E.2d 767, 275 S.C. 541, 1981 S.C. LEXIS 290

• Court: Supreme Court of South Carolina
• Decided: January 6, 1981
• Docket: 21361
• Status: Published

Opinion

Ness, Justice:

Appellant Virnease Broughton appeals from an order vacating a default judgment against respondent David Harold Jaffee and allowing him to file a late answer. We affirm.

On December 12, 1978, appellant asserts pleadings were served in this action and the companion case of Joseph R. Broughton v. David Harold Jaffee. Respondent Jaffee contends he was only served in the companion case.

Jaffee upon learning this case was pending entered a special appearance and moved to set aside the action because service had not been perfected or in the alternative to file a late answer.

Appellant moved for and was granted a default judgment. The trial court vacated the judgment and allowed Jaffee to file a late answer as excusable neglect was shown by: (1) the care and attention Jaffee had given the companion case; (2) the attention Jaffee had given this case once aware it was pending; and (3) the dispute surrounding the perfection of service.

Appellant asserts the trial court erred in permitting Jaffee to file a late answer. We disagree.

A motion for relief under S. C. Code § 15-13-90 (1976) is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a clear showing of abuse. Thermal Insulation Company, Inc. v. Town & Campus, Inc., 271 S. C. 478, 248 S. E. (2d) 310 (1978). Furthermore, where the order of the trial court is based on factual, as distinguished from legal, conclusions, it will not be disturbed unless without evidentiary support. Thermal Insulation Company, supra.

The trial court’s finding of excusable neglect and a meritorious defense is amply supported by the record.

The order appealed from is affirmed and the case remanded for trial on the merits.

Affirmed and remanded.

Lewis, C. J., and Littlejohn, Gregory and Harwell, JJ., concur.