Sullivan v. Shell

Citations

• 36 S.C. 578
• 15 S.E. 722
• 1892 S.C. LEXIS 117

Syllabus

<p>1. Vacatins Judgment — Res Judicata. — If execution is renewed under proper proceedings to that end, after the judgment has been satisfied, the defendant’s remedy, if any, would be by motion in the original cause, and not by a new and independent; action. And, moreover, as the defence of payment could have been pleaded to the summons to show cause why the execution should not be renewed, but was not so pleaded, the order of renewal is res judicata.</p> <p>2. Relief Against Judgment — Code, $ 195. — The defendant entrusted the copy summons to a friend, under instructions to hand it to an attorney, with directions to appear and plead payment, but it was not so delivered to the attorney until the time for answering had expired, and judgment by default was obtained a year afterwards. Held, that there was no such mistake, inadvertence, surprise, or excusable neglect as would entitle defendant to relief under section 195 of the Code.</p> <p>3. Attorneys — Negligence.—If negligence could be imputed to the attorney under these circumstances, defendant’s relief would be only against the attorneys.</p>