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Jefferson v. Gene's Used Cars, Inc.

Supreme Court of South Carolina
Jan 19, 1988
295 S.C. 317 (S.C. 1988)

Summary

holding an order denying a motion to file a late answer was not immediately appealable because the circuit court did not strike a pleading on its merits but refused to allow the answer's filing

Summary of this case from Potts v. McCarty Enters., LLC

Opinion

January 19, 1988.


Jan. 19, 1988.

ORDER

Appellants appeal an order denying their Rule 6(b), SCRCP, motion to be allowed to file a late answer. Respondent moves to dismiss arguing the order is an unappealable interlocutory order. We dismiss the appeal.

Respondent relies on two decisions by the Court of Appeals in arguing for dismissal. Thynes v. Lloyd, 294 S.Ct. 152, 363 S.E.2d 122 (1987); Ateyeh v. United of Omaha Life Ins. Co., 293 S.C. 436, 361 S.E.2d 340 (Ct.App. 1987). These opinions are not dispositive of this appeal since they involve the grant (Ateyeh) and denial (Thynes) of a motion to set aside entry of default under Rule 55(c) SCRCP, rather than denial of a motion to file a late answer under Rule 6(b). Further, while the Court of Appeals reached the correct result in these cases, it improperly relied on Rule 72, SCRCP, and federal cases interpreting the appealability of orders made pursuant to Rule 55(c), F.R.C.P. This Court has held that the right to appeal is controlled by statute and not by Rule 72. North Carolina Fed. Sav. Loan Ass'n v. Twin States Dev. Corp., 289 S.C. 480, 347 S.E.2d 97 (1986). We agree that the grant or denial of a Rule 55(c) motion is not directly appealable under S.C. Code Ann. § 14-3-330 (1976).

Denial of a Rule 6(b) motion is directly appealable only if it falls within the purview of § 14-3-330(1) or (2)(c). An interlocutory order is appealable under subsection (1) only if it involves the merits, that is, "finally determines some substantial matter forming the whole or a part of some cause of action or defense. . . ." Henderson v. Wyatt, 8 S.C. 112 (1877). Subsection (2)(c) permits the direct appeal of orders which affect a substantial right by striking out an answer.

We hold this order is not appealable under subsection (1) because it does not involve the merits. In ruling on appellants' Rule 6(b) motion the judge expressed no opinion on the substantive contents of the answer, but determined only that appellants had not shown good cause to be allowed to file late. We also hold that the order is not appealable under subsection (2)(c) since it does not strike the answer, but refused to allow its filing. Again, this decision does not relate to the merits of the answer. Accordingly, the appeal is dismissed without prejudice.

It is so ordered.


Summaries of

Jefferson v. Gene's Used Cars, Inc.

Supreme Court of South Carolina
Jan 19, 1988
295 S.C. 317 (S.C. 1988)

holding an order denying a motion to file a late answer was not immediately appealable because the circuit court did not strike a pleading on its merits but refused to allow the answer's filing

Summary of this case from Potts v. McCarty Enters., LLC

holding an order denying a motion to file a late answer was not appealable because it neither involved the merits nor struck a pleading; the order ruled only that the appellants failed to show good cause and refused to allow the pleading's filing

Summary of this case from Cnty. of Beaufort v. Towne Ctr. LLC

holding the right to appeal is controlled by statute

Summary of this case from Griffin Plumbing Heating v. Jordan

finding an interlocutory order is appealable under S.C. Code Ann. § 14-3-330 only if it involves the merit s, i.e. it "finally determines some substantial matter forming the whole or a part of some cause of action or defense . . . ."

Summary of this case from Ashenfelder v. City of Georgetown

stating "while the Court of Appeals reached the correct result in [ Thynes ], it improperly relied on Rule 72, SCRCP, and federal cases interpreting the appealability of orders made pursuant to Rule 55(c).... We agree that the ... denial of a Rule 55(c) motion is not directly appealable under S.C. Code Ann. § 14-3-330."

Summary of this case from Palmetto Constr. Grp. v. Restoration Specialists, LLC

In Jefferson v. Gene's UsedCars, Inc., 295 S.C. 317, 368 S.E.2d 456 (1988), this Court held that an order denying a party's motion to file a late answer was a not directly appealable.

Summary of this case from Baldwin Const. Co. Inc. v. Graham
Case details for

Jefferson v. Gene's Used Cars, Inc.

Case Details

Full title:Bernard JEFFERSON, by Maggie B. JOHNSON, his next friend, Respondent v…

Court:Supreme Court of South Carolina

Date published: Jan 19, 1988

Citations

295 S.C. 317 (S.C. 1988)
368 S.E.2d 456

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