(dissenting) :
I most respectfully dissent. While I am not in accord with all of his reasoning, I am convinced that the judge of the civil and criminal court reached the right result and accordingly we should affirm the judgment by virtue of Supreme Court Rule 4, section 8, which reserves to this Court the right to sustain any judgment upon any ground or grounds appearing in the record. I most respectfully suggest that the opinion of Mr. Justice Littlejohn does not fully and accurately reflect the facts of this case. At the time of respondent’s arrest he had recently moved to South Carolina from Alabama and was still driving with a license issued by that state. An affidavit of respondent, in the record, served upon and not in any way controverted by the State, sets forth in detail that he was misled as to the effect of his failure to appear before the magistrate, being “totally” misled to believe by the patrolman who arrested him and the officer who administered the breathalyzer test that the only result of his failure to appear would be the forfeiture of his bond and that as a result of being so misled he did not appear. When he did not appear his case was disposed of in his absence. Although the traffic ticket indicated that he was tried in his absence, the magistrate had no independent recollection of the case and it appears most likely that nothing actually occurred except a bail forfeiture.
It is true that under code section 46-346 the forfeiture of bail has the same effect as a conviction after trial for certain purposes, but it does not follow that there is no distinction between the two in the consideration of the issues involved *187in this appeal. Thereafter the respondent, contrary to what he was led to believe by the officers, was notified by the South Carolina Highway Department that his license would be suspended because of the conviction, which notice he received on or before March 26, 1974. Upon receipt of this notice respondent went immediately to Magistrate Cannon, explained the situation to him and made an oral motion to reopen his case, so as to give him his day in court. Thereafter respondent retained counsel who, by a written motion, sought to reopen the case which motion was heard on April 12th and denied by a written order dated April 15, 1974, such being the order reversed by the Civil and Criminal Court of Horry County.
It appears from the order of the magistrate that the respondent, in effect, made an oral motion for a new trial within five days after receipt of the notice from the Highway Department. The record shows that the magistrate clearly regarded the motion to be meritorious and that he would have granted the same had he determined that he had jurisdiction or authority to do so. We quote the following from his order:
“The Defendant is from the State of Alabama and is not at all familiar with our laws. He appeared to be honest and sincere in his wishes to be allowed to show his particular position and that is that he is not guilty of the particular offense. As soon as he discovered the disposition of the case, he immediately came to see me to attempt to get the case reopened. He had not had his day in court.
“By reason of Section 7-103, Code of Laws of South Carolina, 1962, as amended, I have no choice but to deny the motion for over ten (10) days has elapsed since I signed off the ticket. It is
“Ordered that the motion to reopen the case be and is hereby denied.”
In other portions of his order the magistrate noted it “probably should be reopened” and that the breathalyzer *188showed .11, which was close on the question of whether he was under the influence.
The magistrate was under a misapprehension as to the applicability of code- section 7-103. Code section 43-143 requires that a motion for a new trial before a magistrate be made within five days of the rendering of the judgment. There is no’ requirement that á motion for a new trial in magistrate’s court be made in writing.- Since it is beyond question that the respondent went immediately before the magistrate in an effort to get the case reopened, I conclude that he, in effect, made an oral motion for a new trial within five days of the notice -of judgment- against him, which I think he had the right to do, and the magistrate should have entered such motion upon his docket and proceeded to hear such after notice to the State.
The full content of the magistrate’s order as to the merits of the motion for a new trial, leaves no doubt as to his disposition thereof had he concluded that he had jurisdiction. Cases controlling the disposition of this appeal, particularly the case of Mitchell v. Bates, 57 S. C. 44, 35 S. E. 420, are cited in the Annotation to code section 43-143.
The present case is, of course, factually distinguishable from the facts of Brewer v. South Carolina Highway Department, 261 S. C. 52, 198 S. E. (2d) 256, but I think it not at all distinguishable in principle. Just as in Brewer, respondent in this case has not had his day in court. According to the uncontroverted facts of the record, his failure to appear, if his fault at all, was not strictly his own fault, but was induced by statements made by representatives of the State.
The summons, of course, notified the respondent to appear before the magistrate and of this he was aware, but is he to be penalized for relying upon the statements of the officer who issued the summons and took his bail as to the effect of his failure to appear, particularly when such statements were corroborated by the officer who administered the breathalyzer *189test. These were the only representatives of the State upon the scene and the ones who were responsible for the summons being issued and certainly the average citizen would have no reason to believe that he could not fully rely upon their statements. His situation is quite analogous to one who had been induced to enter a plea of guilty upon misrepresentation by the State as to what his sentence would be following such plea. Here as in Brewer time should not begin to run until notice of a contrary disposition.
The facts asserted by the respondent are not controverted, and contrary to the conclusion reached by Mr. Justice Little-john in his opinion, the record shows that the magistrate was impressed with the honesty, sincerity and veracity of the respondent; considered him entitled to his day in court and would have granted a trial or new trial had he concluded that he had any jurisdiction to do so.
Lewis, J., concurs.