explaining that in Thurston, the action of the officer that had been done was in the exercise of judgment and discretion and for that reason mandamus did not lie "to undo the action, and not merely because the action was a past event"Summary of this case from In re Commonwealth of Virginia
April 12, 1920.
Before MAULDIN, J., Lexington, Spring term, 1919. Order reversed and motion dismissed.
Action by Bunyan Sharpe against L. Virginia Huggins. From an order which opened the judgment on the ground of excusable neglect, plaintiff appeals.
Messrs. Efird Carroll, for appellant.
Messrs. George A. Alderman and William N. Graydon, for respondent
April 12, 1920. The opinion of the Court was delivered by
The appeal is from an order of the Circuit Court which opened a judgment upon the ground of excusable neglect as is provided by section 225 of the Code of Procedure.
The order ought not to have been granted. An identical motion had been made by the defendant a year before the instant motion was made; and it was denied by the Circuit Court, and that order was affirmed by this Court. 110 S.C. 180, 96 S.E. 256.
The first motion was made, as is the instant action, on grounds of excusable neglect; and the Circuit Court denied the first motion for the reason that the neglect was not excusable, and this Court on the authority of Gales v. Poe, 107 S.C. 483, 93 S.E. 189, affirmed that order. It is now said, however, that this Court affirmed that order for other reasons than that assigned by the Circuit Court, but that is not correct; the order was affirmed on the authority of Gales v. Poe, 107 S.C. 483, 93 S.E. 189, and that case arose under section 225, and the Court there denied the motion because the neglect was not excusable.
Therefore the matters now mooted were raised on a prior motion of identical character, and were there adjudged against the movant; that ends the controversy.
But it is said by the defendant that evidence was presented to the Court on the second motion different from that presented on the first motion. A sufficient answer to that is that all the evidence ought to have been presented on the first motion. See McDowell v. McDowell, Bailey Eq. 330.
The order below is reversed, and the motion is dismissed.