Gatling v. Beach Palace, Inc.

365 S.E.2d 736, 294 S.C. 464, 1988 S.C. App. LEXIS 20

Opinion

Per Curiam:

Appellant Beach Palace, Inc. moved to be relieved from a default judgment previously obtained by respondent Bruce H. Gatling, d/b/a Bruce H. Gatling Plumbing Company, on the ground the judgment was void. The Circuit Court denied the motion on the ground it was untimely. We reverse and remand.

Beach Palace moved to be relieved from the judgment pursuant to Rule 60(b) of the South Carolina Rules of Civil Procedure. This rule provides for relief from a final judgment for five reasons, including where “the judgment is void.” The rule further provides, “[t]he motion shall be made within a reasonable time.” However, because a void judgment is a nullity, it may be attacked at any time and, for this reason, the provision of the rule which requires a motion for relief from a judgment to be made within a reasonable time does not apply to motions made on the ground the judgment is void. H. Lightsey and J. Flanagan, South Carolina Civil Procedure (1985); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2862 (1973); 7 J. Moore, J. Lucas & K. Sinclair, Jr., Federal Practice para. 60.25[3] & [4] (1985). Thus, the Circuit Court erred in denying the motion on the ground it was untimely. (Gatling concedes, “that the Trial Court erred in this respect.”)

Gatling argues the motion should be denied on its merits. We decline to address this argument because the Circuit Court has not yet ruled on whether the motion should be granted or denied on its merits. Moreover, the record before us on appeal is insufficient for us to decide this issue.

Beach Palace presents an additional issue not ruled on by the Circuit Court. We also decline to address this issue under the circumstances.

For these reasons, the order of the Circuit Court denying the motion of Beach Palace is reversed, and the case is remanded to the Circuit Court for further proceedings consistent with this opinion.

Reversed and remanded.