Homestead Building & Loan Ass'n v. Parker

The opinion of the Court was delivered by Mr. Justice Gary. 1 The facts of this case are set forth in the order of his Honor, the Circuit Judge, dismissing the petition, which will be reported. The questions presented by the exceptions will be hereinafter stated. Section 3, article V., Constitution of 1868, which was not repealed by the Constitution of 1895, is as follows: “* * * That justice may be administered in a uniform .mode of pleading, without distinction between law and equity, they (the General Assembly) shall provide for abolishing the distinct forms of action, and for that purpose shall appoint some suitable person or persons whose duty it shall be to revise, simplify and abridge the rules, practice, pleadings and forms of the Courts, now in use in this State.” Section 161 of the Code is as follows: “There shall be mo other forms of pleading in civil actions in Courts of record in this State, and no other rules by which the sufficiency of the pleading’s is to- be determined, than those prescribed in this Code of Procedure.” Section 195 of the Code provides that “the Court * * * may in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him, through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding * * *.” In the case of Durant v. Philpot, 16 S. C., 125, which was a motion for a new trial on the ground of after-discovered evidence, Mr. Chief Justice Mclver used this language: “Under the practice of the former Court of Equity, it might, perhaps, have been difficult to sustain the mode of proceeding adopted in this case. Under that practice, a petition for rehearing and a bill of review were sustainable on similar grounds, one of which was newly-discovered evidence (Hewit v. Smith, 3 Rich. [20] Eq., 541) ; but a petition for rehearing was the proper mode of proceeding, where the decree had not been signed and enrolled or filed; whereas, after the filing of the decree, the proper mode of proceeding would be by application for leave to file a bill of review (Simpson v. Downs, 5 Rich. Eq., 425; Hinson v. Pickett, 2 Hill Ch., 353) ; and such bill could not be filed without leave of the Court. Simpson v. Smith or Watts, 6 Rich. Eq., 364. If, therefore, this should be regarded as a petition for rehearing, it is liable to two objections: First, because the decree has been filed; and second, the petition is not verified by two counsel. Ex parte Terry, Rice Ch., 1; 3 Dan. Ch. Pr., 1623. On the other hand, if it be regarded as in the nature of a bill of review, no' leave of the Court to file it seems to have been obtained. It seems to us, however, that since the abolition of the Court of Equity, and the requirement of the Constitution in section 3, article V., that justice shall be administered in a uniform mode of pleading, without distinction between law and equity, these modes of proceeding by a petition for rehearing and bill of review have become inapplicable, and that now the same results can be obtained by motion under the provisions of section 2, chap. CV., Gen. Stat., 497; Hill v. Watson, 10 S. C., 277. See, also, remarks of Simpson, C. J., in State v. David, 14 S. C., 428.” In the case of Covington v. Covington, 47 S. C., 273, Mr. Justice Pope, in behalf of the Court, says : “It does not affect the soundness of these views so expressed, that the legislature has repealed section 2, chap. CV., Gen. Stat., 497, for it will be observed, that there was no provision in the repealed law relative to the form under which the desired relief was to be obtained, which was made the basis of this utterance of this Court; but, on the contrary, it was bottomed on the change wrought in the mode of pleading in our Courts by section 3, article V., of the Constitution of 1868.” From the foregoing it is manifest that it was intended to abolish the proceedings by petition for rehearing and by bill of review, and to substitute therefor the [21] remedy provided by section 195 of the Code, which was intended to be exclusive. 2 Waiving, however, this objection'to the pleadings, we will consider the question raised by the exceptions as if the petitioner had proceeded by motion, under section 195 of the Code. In the case of McDaniel v. Addison, 53 S. C., 222, Mr. Chief Justice Mclver uses this language, in delivering the opinion of the Court: “The motion is based upon section 195 of the Code of Procedure, which provides, amongst other thing's, that the Court may 'in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or, by an order, enlarge such time.’ It is manifest, therefore, from the express terms of the statute, that a motion of this character is addressed to the discretion of the Circuit Court, and not, therefore, ordinarily appealable. For, as it was said by the late Chief Justice Simpson, in Truett v. Rains, 17 S. C., 451, and quoted with approval in the very recent case of Michalson v. Roundtree, 51 S. C., 405, ‘As a general rule, where a Court or Judge is invested with power to be exercised at discretion, such power is absolute, and when exercised it is final. From the very meaning of the term and the nature of the power, discretion is unlimited. It is bounded by no rule except the good sense and integrity of the party empowered to exercise it, and in the absence of an express right to appeal, it necessarily follows that its exercise is unappealable.’ While this is undoubtedly the general rule, our cases, some of which have been cited in the argument of counsel, recognize at least one exception, and that is where there has been an abuse of discretion. Of course, this Court would not assume that any Circuit Judge had been guilty of abusé of discretion confided to’ him by law, and hence, whenever an appeal has been taken upon this ground, the burden rests upon the appellant to show that there has been abuse of discretion.” The practical question, therefore, raised by the exceptions in this case is whether the Circuit Judge abused [22] his discretion in dismissing the petition. Such an order is not, ordinarily, appealable, and although this Court might in the first instance have reached a conclusion different from that stated by the Circuit Judge, his action will be affirmed unless there was an abuse of discretion. The parties between whom the'misunderstanding in this case arose, are gentlemen of the highest character, and there is not even an intimation of any unfair dealing on the part of any of them. It would be of no practical use to state at length the reasons for the conclusion at which this Court has arrived. The facts stated by the Circuit Judge in his order dismissing the petition, are sufficient to show that he did not abuse his discretion. It is the judgment of this Court, that the order of the Circuit Court be affirmed.