Don Shevey & Spires, Inc. v. American Motors Realty Corp.

301 S.E.2d 757, 279 S.C. 58, 1983 S.C. LEXIS 266

• Court: Supreme Court of South Carolina
• Decided: April 5, 1983
• Docket: 21893
• Status: Published

Opinions

Ness, Justice:

This is an appeal from the trial court’s dismissal of an action without prejudice for plaintiff-appellant’s failure to proceed in the cause. The appellant cannot reinstitute the action because the statute of limitations has run, and therefore contends the trial court erred in dismissing the action. We disagree and affirm.

Appellant served a Summons (Complaint Not Served) on July 15, 1976. After respondents timely demanded a complaint, appellant requested and was granted an extension of time.

Appellant then delayed fifteen months in filing the Summons, despite S. C. Code Ann. § 15-9-1000 (1976) and Circuit Court Rule 26 which then required that all pleadings be filed within ten days after service. Appellant’s present counsel was substituted just prior to the filing of the summons, and current counsel admitted he knew of no valid excuse for previous counsel’s failure to file.

Appellant not only failed to timely file the Sammons, it also failed to otherwise timely prosecute the case. Appellant took no action between August 1976 and March 1978, when a Complaint was finally served twenty months after service of the Summons. Respondent removed the case to federal court shortly after service of the Complaint, but it was later remanded for lack of diversity.

The plaintiff has the burden of prosecuting his action, and the trial court may properly dismiss an action for plaintiff’s unreasonable neglect in proceeding with his cause. Thomas & Howard Company v. Fowler, et al, 238 S. C. 46, 119 S. E. (2d) 97 (1961); Small v. Mungo, 254 S. C. 438, 175 S. E. (2d) 802 (1970). This authority is necessary if the courts are to control and efficiently manage an ever-expanding docket. Additionally, we disfavor the use of the Summons (Complaint Not Served), and have held those who use the device to high standards of compliance with procedural requirements. Richardson Construction Company, Inc. v. Meek Engineering & Construction, Inc., et al, 274 S. C. 307, 262 S. E. (2d) 913 (1980); Williams v. Carpenter, 273 S. C. 339, 256 S. E. (2d) 316 (1979).

Appellant argues respondent waived the irregularities by not requesting an order requiring appellant to file the Summons pursuant to § 15-9-1000, and by not making repeated demands for a Complaint. We are not persuaded by this argument, as it would be anomalous to require a defendant to force or encourage a plaintiff to proceed with his suit. As we stated in Thomas & Howard Company v. Fowler, 238 S. C. at 52, 119 S. E. (2d) 97:

“The defendants, no less than the plaintiff, had the right... to press for trial; but the duty to do so was the plaintiff’s, not theirs. While a defendant may bring about an expeditious trial of a case, he has no legal obligation to do so; except to meet such actions as are taken by the plaintiff, he may remain passive. (Emphasis added.)

Appellant further asserts respondents waived the irregularities by not moving to dismiss the case prior to removing it to federal court. However, respondents might have risked waiving their right to remove had they indicated submission to the state court’s jurisdiction.

As the trial judge noted, “to allow appellant to remain in court on a foundation which includes (1) the use of a Summons (Complaint Not Served), (2) the failure to file the Summons for over fifteen months, and (3) the failure to serve and file a Complaint for over twenty months, — would be to completely disregard the plaintiffs burden of proceeding with due diligence.” (Tr. p. 66-67). Appellant failed to meet even the minimum standards for proper commencement and prosecution of an action. Accordingly, we affirm the trial court’s dismissal of the action.

Affirmed.

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