[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 February 28, 1941. The opinion of the Court was delivered by *Page 328 The controversy involved in this appeal arises out of the fortuitous circumstance that an assistant in the office of the Clerk of Court for Florence County inadvertently failed to give notice to the attorneys for the respective parties of the filing of an order herein granted by Judge Greene, dated May 10, 1940, and received by the Clerk of Court May 13, 1940. This order granted the defendant a new trial unlessthe plaintiff should remit $7,500.00 from the verdict rendered in his favor of $25,000.00 at the February-March, 1940 term of the Court of Common Pleas for Florence County, the condition being that such remission should be made within twenty days from the filing of the order. It appears that neither the attorneys for the plaintiff nor the attorneys for the defendant had any notice that such an order had been handed down or filed until July 24, 1940, when the filing of the same was by chance discovered by plaintiff's counsel, who thereupon on the same day served notice upon defendant's counsel to the effect that plaintiff remitted the sum of $7,500.00 from the verdict and elected to abide by the judgment to be entered thereon as so reduced. And the plaintiff, without further notice to the defendant, entered up a purported judgment for the sum of $17,500.00, with interest and costs. Thereafter, to wit, on August 2, 1940, defendant served notice upon plaintiff's attorneys that it intended to insist, and thereby insisted, that Judge Green's order granting a new trial nisihad the effect of and constituted an unconditional granting of a new trial because plaintiff did not make the remission within twenty days from the filing of the order, and this notice was also a notice of appeal to the Supreme Court from any purported judgment entered or to be entered in favor of the plaintiff.
This action was brought to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 etseq., for personal injury to the plaintiff while in the employment *Page 329 of the defendant, and the cause came on for trial before Judge Greene and a jury at the February-March 1940 term of the Court of Common Pleas for Florence County, as above stated. After the verdict was entered a motion for a new trial was duly and timely made and taken under advisement. When Judge Greene returned to his home in Anderson he prepared his order granting a new trial nisi, the same being dated May 10, 1940, which he forwarded to the Clerk of Court of Florence County, together with a letter bearing the same date, directing him to "file this order and notify attorneys for both parties." This letter, together with the order, was received by an assistant in the Clerk's office on May 10, 1940, who marked the order filed as of that date and placed it in a cabinet in which a large number of orders and papers in other cases were stored. But it appears that through inadvertence the direction of Judge Greene that the attorneys be notified was overlooked or misconstrued, although the letter is quite definite in this respect. The original letter was not preserved, although clearly it should have been filed with the order. However, a copy of the letter will be found in the transcript of record.
Since the notice was not given as directed by Judge Greene it is not surprising that neither plaintiff's counsel nor defendant's counsel were aware that the order had been handed down, or that it was on file in the Clerk's office. Indeed, it appears that one of the attorneys for the plaintiff, having been informed by the Clerk on or about July 12, 1940, that Judge Greene had decided some other case in which he was interested, then inquired of the Clerk if any order in the instant case had been filed, and the Clerk informed him that no such order had been filed. Thereafter, to wit, on July 24, 1940, the same attorney for the plaintiff received information from a member of the Florence bar that Judge Greene had incidentally stated that he had handed down an order granting a new trial nisiin this case. But upon inquiry at the Clerk's office he was at first again informed *Page 330 by the Clerk that no such order had been filed; but upon further investigation the order was discovered. Of course the statements to counsel by the Clerk of Court were made in the utmost good faith, the facts of the matter being within the knowledge of his assistant and not of himself. It is, however, significant that the order was filed in such a manner that even the Clerk of Court himself seemed unable to locate it.
The matter appears to have been brought to an issue by a rule to show cause issued by Judge Grimball while presiding in the Twelfth Circuit, dated September 19, 1940, upon a verified petition of the defendant, directing that the plaintiff show cause why the purported judgment entered in his favor should not be cancelled and why he should not be enjoined from issuing execution thereon or taking any other steps for the enforcement thereof. In the meantime, however, plaintiff through his counsel made an ex parteapplication to Judge Greene, upon affidavits, for an amendment of his order granted May 10, 1940, pursuant to which Judge Greene handed down an order dated at Anderson, September 20, 1940, in which he purported to amend his previous order dated May 10, 1940, granting a new trial nisi, by providing therein that the remission of the sum of $7,500.00 should be made "within twenty days from and after notice of the filing of this order"; that is to say, the words "and after notice of" were thus in effect inserted in the original order, but no further change was made therein.
The plaintiff duly made a return to the rule to show cause issued by Judge Grimball, and the matter appears to have been fully heard by him on November 7, 1940, and thereafter, to wit, on November 19, 1940, he handed down his order wherein he dismissed the rule to show cause and affirmed the plaintiff's right to enter judgment against the defendant in the sum of $17,500.00, with interest and costs; and from this order the defendant appealed to this Court. *Page 331 In the meantime the defendant had given notice of appeal from so much of Judge Green's order dated September 20, 1940, as amends his order dated May 10, 1940. And it was agreed that the appeal from the order of Judge Greene dated September 20, 1940, and from the order of Judge Grimball dated November 19, 1940, should be consolidated. Hence both of these orders are before us on this appeal.
A careful review of the order of Judge Grimball, in the light of the record and the arguments of counsel for the respective parties, convinces us of the correctness of his well considered order, both as to his conclusions and supporting reasons. We direct that his order be reported, and the same is adopted as a part of this opinion. Indeed, so far as his order is concerned, no further comment on the matters therein decided appears really to be necessary, although some additional observations will be made.
The fundamental question involved in this appeal is: Was the purported filing on May 13, 1940, of Judge Green's order nisi, dated May 10, 1940, constructive notice to the plaintiff or his attorneys?
If this question should be answered in the affirmative, then clearly the contention of the defendant would be correct, unless relief might be granted to the plaintiff on the ground of mistake, inadvertence, surprise or excusable neglect under Section 495, Code 1932. But if, as we think, the answer should be in the negative, then the plaintiff by his attorneys acted in due time.
A question precisely of this character does not appear to have ever been before this Court. But the case of Barnettv. Gottlieb, 105 S.C. 67, 89 S.E., 641, strongly relied on here and in the Court below by the defendant, involved a case where an order nisiwas made and filed while the Court was in session, that is to say, during the same term the case was tried; and it was there held that the plaintiff had constructive notice of the terms of the order and having failed *Page 332 to comply with the same, without a sufficient excuse, the order became in effect an absolute order for a new trial.
This case in our opinion unquestionably holds in accordance with the general rule on the subject that parties to a cause are chargeable with notice of orders made and filed in term time, that is to say, while the Court is in session. One obvious reason for this rule is that such orders are usually announced in open Court from the bench and interested parties would of course be expected to take notice thereof. And as to orders granted and filed in term time, the time for appealing does not commence to run until the rising of the Court. The reason for this doubtless is that a Circuit Judge is "in absolute control of all orders signed by him in term time." Cusack v. Southern R. Co., 116 S.C. 143,107 S.E., 30, 31.
We are of opinion, however, that a different rule should be applied as to orders in contested cases filed out of term time, that is to say, while the Court is not actually in session; especially in view of modern conditions when perhaps the greater part of the business of the Court is conducted at chambers, and orders are constantly being filed in what is euphemistically styled vacation. And we may take judicial cognizance that the trial Judges of the State recognize the justice and necessity of notice of such orders, because it is their invariable practice to provide that notice be given to counsel for the respective parties in all contested cases. The usual practice in this respect appears to have been followed by Judge Greene when he forwarded the original order to the Clerk of Court with a letter directing that notice be given, although sometimes copies of orders are forwarded by the trial Judge to counsel, and in other cases the order is forwarded to the attorney in whose favor it was rendered, with instructions to file and notify opposing counsel. But in some way notice is directed to be given. *Page 333
We are therefore impelled to hold that actual notice should be given to the attorneys (or the parties) of the filing of such an order, as a condition precedent to its effectiveness; especially as such a rule is founded in reason and justice, and there is no controlling authority to the contrary.
The authorities outside of the State are not uniform, but there are cases indicating that this should be the approved rule. We quote the following from 42 C.J., 539, 540: "In some jurisdictions the rule prevails that parties to a cause are chargeable with knowledge of all proper and legal orders made therein, except where service is specially directed, although it has been held that neither parties nor counsel are required to take notice of orders made after the Judge has left the courthouse for the term. But in other jurisdictions the rule is that only the moving party is chargeable with notice of an order made in a cause, and that such order must be served upon the adverse party in all cases where his rights may be affected or prejudiced by any proceedings taken under it before the party in whose favor the order was granted can take any benefit under it, and such service has been held necessary, although the adverse attorney was in Court at the time when the order was granted, but there is contrary authority."
The foregoing quotation shows that in some jurisdictions a different rule is applied to the moving party, and, indeed, it appears that there are several cases definitely holding that the moving party must at his peril watch for the decision and take notice of the ruling upon his own motion. And it will be noted that in the instant case the plaintiff was not the moving party. However, we are of opinion that as to orders filed out of term the moving party should also have notice thereof, although there may be some reason for placing him in a different category. But it scarcely seems reasonable to us to require the attorneys for either side in a contested case to make a daily inspection of the records in the Clerk's office. In fact, such an inspection might not *Page 334 afford full protection if the paper were filed in the manner in which the order of Judge Greene, dated May 10, 1940. appears to have been filed in this case.
It may seem rather surprising that this matter has not been dealt with comprehensively and directly by statute; but we are of opinion that so far as orders of the character here under consideration are concerned, that is to say, orders granting or refusing a new trial, the statutory provisions contained in Section 781, Code of 1932, are practically conclusive on the point. It is there provided: "That whenever a motion for a new trial upon the Judge's minutes shall have been made and the decision thereon not be both heard and filed at the term at which the trial is had, then notice of intention to appeal either from the judgment or the order granting or refusing a new trial shall be given to the opposite party or his attorney within ten days after written notice that such order has been granted or rendered."
While it is argued by counsel for the appellant that since this statute relates only to the matter of appeal, it cannot by implication be applied to the matter of availing oneself of the right to comply with a condition contained in an order nisi, we are unable to concur in this reasoning, for it seems to us that it would be an intolerable anomaly that the right of appeal from an order should remain unimpaired until notice thereof is given, although for other purposes and in other respects a party may have lost some substantial rights thereunder. At least, the statute tends to support the rule hereinbefore sanctioned by us.
There is a statement made in the opinion in the case ofBarnett v. Gottlieb, supra, to the effect that the order nisi "was as much in favor of one party as it was in favor of the other party," and hence that the defendant was not required to give plaintiff notice of the filing of the order. But it is indubitable that this is a mere obiter dictum, for the decision was based squarely on the proposition that the order was made in term time and hence that "the parties had *Page 335 constructive notice of it, and were bound to follow it." Indeed, it seems to us that Judge Greene's order nisigranting a new trial should certainly be deemed an order sufficiently in favor of the defendant to have required notice to be given to the attorneys for the plaintiff under Section 781, and doubtless such notice would have been given by the attorneys for the defendant if they had been informed of the filing of the order.
Counsel for appellant call attention to the case ofCalhoun v. Port Royal W.C. Railway Co.,42 S.C. 132,20 S.E., 30, in which it is held with reference to the provisions of the Code now contained in Sections 605, 606, that where a motion for a new trial was made on the minutes and heard at the same term at which the verdict was rendered, but was decided thereafter, the Judge's order would "be regarded as not only heardbutdecidedduring the terms." This ruling was intended to validate the salutary practice of allowing the trial Judge ample time for deliberation on motions of this character by applying the legal fiction of a nunc pro tuncfiling. But to extend this fiction so as to hold that parties and their counsel are bound to take notice of such orders although actually filed out of term would be in violation of the well settled doctrine that while a fiction may be used for the promotion of justice it cannot be employed to hinder it. Moreover, the legislative will in this connection is well indicated by the provisions of Section 781 to which reference has already been made.
Perhaps some reference should be made to the case ofWitt, Receiver, v. Leysath, 160 S.C. 251, 158 S.E., 226, cited by counsel for appellant, wherein it was held that a defaulting defendant would be bound by constructive notice of the judgment taken against her and duly entered and recorded. But clearly after the Court acquires jurisdiction of the defendant by service of process, and default is made, the defendant is not entitled to further actual notice of the *Page 336 judgment consequent thereon. The rule relating to notice as above indicated applies only to contested cases.
It was suggested by counsel for appellant that if the plaintiff was in fact entitled to any relief at all he could only obtain it by application to the Court under the provisions of Section 495, Code 1932. Indeed, Judge Grimball incidentally remarks in his order that he is convinced from the showing before him that the action of the plaintiff and his counsel in not remitting until July 24th was excusable. Exception, however, is taken to this ruling upon the ground that in such motion was made before Judge Grimball, and that defendant did not have its day in Court on this phase of the matter. In this connection, it will be recalled that in the case of Barnett v. Gottlieb, supra, the Court alluded to its assumption that no showing was made that Barnett was excusable for not having made the remission in time. While we do not think it is at all necessary to require the plaintiff to fall back on Section 495, we deem it proper to say that under the admitted facts of the instant case, if there was in truth any neglect on the part of the plaintiff or his counsel it was clearly excusable.
There is a point made in this appeal which does not appear to have been raised in the Court below, to wit, that the notice of remission was given by the plaintiff's attorneys, whereas it could only be given by the plaintiff himself, under the express terms of Judge Greene's order nisi.Since the question was not raised in the trial Court it is not properly before us for consideration, but we may add that the verified petition presented by the defendant upon which Judge Grimball issued his rule to show cause plainly indicates that the only contention then made as to plaintiff's alleged failure to comply with the terms of Judge Greene's order was that "the plaintiff failed to serve such notice on the defendant until July 24, 1940, long after the time permitted by the Circuit Judge." Furthermore, the notice of remission, while signed by the attorneys only *Page 337 recites that the "plaintiff H.B. Thornton hereby remits" the sum in question. Certainly in this situation the attorneys for the plaintiff will be presumed to have had authority to make the remission. Poore v. Poore, 105 S.C. 206,89 S.E., 569.
In view of our conclusion as to the law of the case, the amendatory or supplemental order of Judge Greene, dated September 20, 1940, is wholly immaterial. We of course adhere to the rule laid down in many cases that after a Circuit Judge has filed an order out of term the same becomes final and binding and cannot be modified, overruled or reversed by him; but this rule is subject to the very reasonable exception which permits the correction of a clerical mistake, that is to say, a correction relating to a matter of form and not of substance. This principle is well stated in the case of Varser v. Smith187 S.C. 328,197 S.E., 394, in which the Court reaffirms the doctrine laid down in the leading case of Chafee Co. v.Rainey, 21 S.C. 11, where the Court quoted with approval the following from 2 Dan. Ch. Pr., 1233: "In cases, however, in which a clerical error has crept into the decree, or in which some ordinary direction has been omitted, the Court will entertain applications to rectify it, even though it has been passed and entered. * * * It is, nevertheless, to be observed, that it is a principle of the Court, that no alteration can be made in a decree on motion without a rehearing, except in a matter of clerical error or of form, or where the matter to be inserted is clearly consequential on the directions already given."
Judge Greene's amendatory order merely writes into his original order the law as laid down by us in this opinion. If therefore it were held that he was without jurisdiction to grant the amendatory order, such an error would not have been prejudicial to the defendant. But we are of opinion that his order comes within the exception above stated. *Page 338
Likewise the position that Judge Grimball's order in effect attempts to modify Judge Greene's order of May 10, 1940, seems to us clearly untenable, for the reasons above indicated with reference to the power of a Circuit Judge to make any changes in orders previously signed and filed by him. As we view the record the order of Judge Grimball merely gives effect to the order of Judge Greene dated May 10, 1940, in accordance with the law. But even if Judge Grimball's order could be construed as in any way modifying the order handed down by Judge Greene, dated May 10, 1940, such modification was certainly clerical only and in no wise antagonistic. We think this case comes within the principle expressed in the case ofCarolina Baking Company v. Geilfuss, 169 S.C. 348, 168, S.E., 849, 851: "A prior order of one Circuit Judge may be aided and enforced by the order of another Circuit Judge, but the prior order may not be changed or modified by the latter order so as to substitute antagonistic terms and conditions."
Some reference has already been made to the fact that the attorneys for the defendant gave notice of appeal to this Court "from any purported judgment entered or to be entered in favor of the plaintiff in the above stated case." But such an appeal as that is not now before us and of course could not be affected by this opinion, because the instant appeal relates only to the order of Judge Grimball and the supplemental order of Judge Greene dated September 20, 1940, purporting to amend his original order.
The orders involved in the instant appeal are affirmed.
MR. CHIEF JUSTICE BONHAM, MR. JUSTICE FISHBURNE and MR. ACTING ASSOCIATE JUSTICE J. STROM THURMOND concur.
MR. JUSTICE BAKER disqualified. *Page 339