Opinion
11503
May 9, 1924.
Before ANSEL, County Judge, Greenville, May, 1924. Affirmed.
Action by Savannah Supply Company against T.E. Ross. From an order refusing to open and set aside a default judgment, defendant appeals.
Mr. R.G. Stone, for appellant, cites: No hard and fast rules which govern the granting of motions: 108 S.C. 49.
Mr. W.G. Sirrine, for respondent, cites: No abuse of discretion: 77 S.C. 91.
May 9, 1924. The opinion of the Court was delivered by
In an action on account, commenced August 22, 1922, in the County Court of Greenville County, the plaintiff recovered judgment by default, May 24, 1923. Notice of appearance was served by defendant's counsel on September 11, 1922, but no answer was ever filed. Notice of motion to set aside the judgment by default was served on plaintiff's attorney on July 13, 1923. From an order of Hon. M.F. Ansel, County Judge, refusing the motion to open and set aside the judgment, the defendant appeals.
The motion to vacate was made under the provisions of Section 437, Code Civ. Proc. 1922, nearly 11 months after the service of the summons and complaint. By the express terms of the statute such a motion is addressed to the discretion of the Court. The County Judge found, in substance, that the facts adduced by defendant to support his application neither established such due diligence nor made such prima facie showing of a good and meritorious defense as entitled him to the relief sought. Even where there has been mistake, inadvertence, surprise, or excusable neglect, there is no abuse of discretion in refusing to open a judgment, in the absence of a satisfactory prima facie showing that the applying party has a good and meritorious cause of action or defense. 23 Cyc., 962. Sarratt v. Manufacturing Co., 77 S.C. 91; 57 S.E., 616. Careful examination of the record discloses no sufficient basis for a conclusion that there was any abuse of discretion in refusing the defendant's motion in the case at bar. The ruling, therefore, cannot be disturbed by this Court. Le Conte v. Irwin, 19 S.C. 557. White v. Coleman, 38 S.C. 556; 17 S.E., 21. Odom v. Burch, 52 S.C. 305; 29 S.E., 726. Washington v. Hesse, 56 S.C. 28; 33 S.E., 787.
Affirmed.
MESSRS. JUSTICES WATTS, FRASER and COTHRAN concur.