Opinion
20230
June 2, 1976.
Douglas McKay, Jr., Esq., of McKay, Sherrill, Walker Townsend, Columbia, for Appellant, cites: As to the lower Court's having properly dismissed the action because of Plaintiff's failure to serve the complaint after demand, nevertheless, erring in restoring the case to the calendar when there was no proof of mistake, inadvertence, surprise or excusable neglect: Sections 10-633, 10-1502 and 10-1213, South Carolina Code 1962; 228 S.C. 105, 88 S.E.2d 871; 240 S.C. 203, 125 S.E.2d 353; 243 S.C. 565, 135 S.E.2d 94; 231 S.C. 545, 99 S.E.2d 391; 108 S.C. 350, 94 S.E. 732; 92 S.C. 33, 75 S.E. 278; 263 S.C. 98, 207 S.E.2d 820; 226 S.C. 621, 86 S.E.2d 581; 208 S.C. 230, 37 S.E.2d 579; 204 S.C. 473, 30 S.E.2d 70; 225 S.C. 261, 81 S.E.2d 898; 212 S.C. 325, 47 S.E.2d 785.
W. Ray Berry, Esq., of Berry Berry, Columbia, for Respondent, cites: As to the order of the trial Judge's being appealable in view of the fact that the exceptions of the Appellant did not charge the trial Judge with abuse of discretion: 263 S.C. 98, 207 S.E.2d 820; 230 S.C. 288, 95 S.E.2d 482; 240 S.C. 203, 125 S.E.2d 353; 242 S.C. 451, 131 S.E.2d 508. As to the Appellant's not having carried the burden of showing abuse of discretion by the trial Judge in ordering the action restored to the calendar of the Court of Common Pleas for Richland County: 253 S.C. 147, 169 S.E.2d 387; 231 S.C. 545, 99 S.E.2d 391; 204 S.C. 473, 30 S.E.2d 70; 235 S.C. 246, 111 S.E.2d 205; 251 S.C. 67, 160 S.E.2d 133.
Douglas McKay, Jr., Esq., of McKay, Sherrill, Walker Townsend, Columbia, for Appellant, in Reply.
June 2, 1976.
After dismissing this case by order of November 19, 1975, the trial judge, on November 26, 1975, attempted to revive the action and restore it to the calendar for trial. The defendant has appealed the order wherein the judge attempted to revive the case.
The order of November 19, 1975, dismissing the action is as follows:
"Plaintiff instituted this action against the Defendant by service of `Summons, Complaint not Served' on 20th February, 1974. Defendant served on Plaintiff's counsel `Notice of Special Appearance and Demand for Complaint and Notice of Motion to Dismiss if Complaint not Timely Served.' The Notice was dated 21st February, 1974 and Plaintiff's attorney signed acknowledgment of service thereof 25th February, 1974.
"This case appears as the eighth (8th) case on the second trial roster of cases assigned to me for trial during the present term of Court. At the call of the second roster commencing 9:00 a. m., 12th November, 1975, Defendant's counsel called the Court's attention to the fact that the Complaint had not been served and that there was an alternate motion to dismiss in the Notice of Appearance and Demand.
"I set the matter for hearing 8:30 a. m., Thursday, 13th November. Plaintiff's counsel did not appear at that time and efforts to reach him were unsuccessful. Accordingly, the matter was reset for hearing before me at 9:00 a. m., Monday, 17th November. At that time, Plaintiff's counsel stated, according to the Court's recollection, that he had placed the Complaint in the mail to Defendant's counsel the preceding night.
"On 18th November, the Court called another meeting of members of the Bar to reset trial roster number two and the meeting was scheduled for 5:00 p. m. Plaintiff's counsel and Defendant's counsel were notified. Defendant's counsel appeared at the meeting at 5:00 p. m. and informed the Court that he had not received copy of the Complaint on Monday, 17th November, nor Tuesday, 18th November. At the request of Court, he presented the original Notice of Appearance with alternate Motion to Dismiss with acknowledgment of service thereof by Plaintiff's counsel.
"It appears to the Court that more than twenty (20) days have elapsed since service of Defendant's Notice of Appearance and Demand for copy of the Complaint on Plaintiff's counsel. Copy of the Complaint has not been served and under the terms of the Notice of Appearance Defendant is entitled to have the case dismissed.
"Accordingly, It Is Ordered, Adjudged And Decreed that the foregoing action is dismissed"
We are of the opinion that the order quoted hereinabove finalized and ended the action. That order has not been appealed and it was not within the province of the lower court to breathe life back into the lawsuit.
Reversed.
LEWIS, C.J., and NESS, RHODES and GREGORY, JJ., concur.