Maybank Fertilizer Co. v. Jeffcoat , 131 S.C. 420 ( 1925 )

May 12, 1925. The opinion of the Court was delivered by In an action upon fertilizer notes the defendant, through his attorneys, Efird Carroll, filed a verified answer, setting up failure of consideration and a counterclaim. The cause having been duly docketed, and coming on for trial, Mr. Efird, one of defendant's attorneys, advised plaintiff's counsel that the defense would not be pressed further, and allowed a judgment on verdict to be entered against his client without a contest. Several months thereafter upon motion, duly noticed, based on an affidavit of Mr. Efird, his Honor Judge Rice, set aside the judgment, under section 437, Code Civ. Proc., 1922, upon the ground, in substance, that the defendant's counsel had consented to the judgment against his client under a misapprehension of fact, due to excusable neglect. From the order vacating the judgment, plaintiff appeals.

The affidavit of Mr. Efird unquestionably tended to establish that he acted under a mistake of fact and that the mistake was due to his confusion of the facts in this case with those in a similar case against another party represented by his firm. It therefore cannot be held that the finding of fact of excusable neglect on the part of Mr. Efird was wholly without evidence to support it. Nor is there any showing made by appellant that the judge's ruling was predicated upon or controlled by error of law. That the excusable neglect of an attorney inures to the benefit of the client in such a matter is not open to question.Ex parte Rountree, 51 S.C. 405; 29 S.E., 66. Nor, was the Judge under any compulsion of law or reason to refuse the motion on the ground that the affidavit did not disclose that defendant had a valid defense? The absence of such a showing may justify the refusal to open a judgment (SavannahSupply Co. v. Ross [S.C.], 122, S.E., 773), but does not require that the Court shall let the judgment stand. Aside from that, in this case the sworn answer made aprima facie showing of a valid defense. The record disclosed no ground for holding that there was any abuse of discretion on the part of the Circuit Judge, and his order must be affirmed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and FRASER, and MR. ACTING ASSOCIATE JUSTICE J.W. JOHNSON concur.