Charleston Republic Truck Co. v. Kendricks

115 S.E. 820, 123 S.C. 13, 1923 S.C. LEXIS 45

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of Judge Memminger, April 17, 1922, refusing a motion to vacate and set aside the judgment obtained in this cause on the ground of mistake, surprise, inadvertence, ¡and excusable neglect, and on the further ground that such judgment''was obtained in violation of an agreement made between plaintiff’s and defendant’s attorneys, to the effect that the cause would not be tried at the fall term, 1921, of the Court of Common Pleas for Colleton County, but would be dismissed.

The exceptions, nine in number, allege error on the part of Judge Memminger in refusing to vacate the judgment. We will not discuss them seriatim as we think that his order should be reversed so far as the judgment of defendant upon his counterclaim is concerned, on the ground that Mr. Moorer’s letter of October 17, 1921, to Messrs. McMillan & Heyward, plaintiff’s counsel, at that time, misled plaintiff’s counsel. He said nothing about pressing counterclaim, and plaintiff’s counsel reasonably inferred that if the costs were not paid under the terms of Judge DeVore’s order, the complaint would be dismissed and the whole proceeding-ended. Mr. Moorer in that letter uses the following language :

“Of course if it is the intention of the Charleston Republic Truck Company to have the cause dismissed, without the payment of this back costs, that will be satisfactory to us.”

The plaintiff made no attempt to comply with the order of Judge DeVore, and the complaint should be dismissed, under the terms of Judge DeVore’s order; but the appeal from Judge Memminger’s order is sustained, and judgment on defendant’s counterclaim is vacated and set aside, and case remanded for trial of counterclaim on its merits and issues as made.

Order appealed from reversed.

Mr. Chief Justice Gary and Mr. Justice Fraser concur.