Setting aside a South Carolina default judgment: good cause before judgment, five grounds after

South Carolina splits the question in the usual way — an entry of default is easier to undo than a default judgment — but its relief rule is narrower than most states'.

Rule 60(b) lists five grounds. The federal rule and most state versions add a sixth: "any other reason justifying relief." South Carolina does not have it. If your situation does not fit one of the five, the rule does not reach it.

Entry versus judgment

S.C. R. Civ. P. 55(a):

Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default upon the calendar (file book).

Rule 55(c):

Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

Good cause is the easier test, and it has no enumerated list to fit into. So the first question in any South Carolina default case is whether a judgment has actually been entered, or only a default noted on the calendar.

The five grounds

Rule 60(b):

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

The list stops there. There is no "any other reason justifying relief" in South Carolina's rule, so the five have to do all the work — and (4), a void judgment, carries more weight here than it does elsewhere, because it is the ground that reaches a judgment entered without proper service or without jurisdiction.

The deadline

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.

And note what the motion does not do: it "does not affect the finality of a judgment or suspend its operation." Collection continues while the motion is pending unless you obtain a stay separately.

The rule also preserves two routes outside itself:

This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. During the pendency of an appeal, leave to make the motion must be obtained from the appellate court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

Two things follow. An independent action survives, and so does relief for fraud upon the court — which is distinct from ground (3)'s fraud by an adverse party. And if an appeal is pending, you need leave from the appellate court before making the motion at all.

Send the judge a copy within ten days

A small requirement in Rule 60(a) that applies to written motions under the rule:

A party filing a written motion under this rule shall provide a copy of the motion to the judge within ten (10) days after the filing of the motion.

Filing is not enough. The judge gets a copy within ten days.

Was the judgment properly entered in the first place?

Before arguing excusable neglect, check whether the judgment complied with Rule 55(b). Several requirements are commonly missed, and a judgment entered without them is the strongest kind of attack.

Three days' notice if you appeared. From Rule 55(b)(2):

If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the motion or application for judgment at least 3 days prior to the hearing on such application.

Notice of a damages hearing even if you did not appear. Also from (b)(2):

Pursuant to Rule 5(a), notice of any trial or hearing on unliquidated damages shall also be given to parties in default by first class mail to the last known address of such party whether or not such party has appeared in the action.

That is unusual and useful: a defaulted party who never appeared is still entitled to notice of a hearing on unliquidated damages.

A sum certain, or a hearing. Under Rule 55(b)(1) the clerk-style route is available only "When the claim of a party seeking judgment by default is for a liquidated amount, a sum certain or a sum which can by computation be made certain", on affidavit of the amount due — and "A verified pleading may be used in lieu of an affidavit when the pleading contains information sufficient to determine or compute the sum certain."

Anything else falls under (b)(2), where the court "may conduct such hearing or order such references as it deems necessary and proper" and must preserve a jury right properly demanded under Rule 38.

Attorney's fees have their own procedure

Rule 55(b)(3):

Attorneys Fees. If a party seeks to recover attorneys fees in connection with a default judgment, a hearing pursuant to subdivision (b)(2) of this rule shall be required unless: (i) the party seeking attorneys fees specifies in the motion for default judgment that such motion includes a request that the court award attorneys fees and also files an affidavit of attorneys fees; (ii) notice of such motion and affidavit is provided to the defaulted party by first class mail to the last known address of such party; and (iii) no objection is filed by the opposing party within 10 days of service of such motion and affidavit.

A fee award without a hearing requires all three conditions. If you were never mailed the motion and affidavit, or if fewer than ten days passed, the fee component is vulnerable on its own — even if the underlying judgment stands.

That 10-day objection window is also a live deadline for anyone who has just received such a mailing.

Parties who cannot be defaulted at all

Rule 55(e):

Judgment Against the State and Certain Other Parties. No judgment by default shall be entered against the State of South Carolina or an officer or agency thereof, against minors, incompetents, or parties to a suit for divorce or annulment of marriage or against a party upon whom service of summons was made by publication, and who did not subsequently make appearance in the action, or in any in rem action, unless the claimant establishes his claim to relief by evidence satisfactory to the Court.

Six categories, and the fourth is the one that recurs in debt and title cases: a defendant served by publication who never appeared cannot be defaulted unless the claimant proves the claim by evidence satisfactory to the court.

Rule 55(b)(4) adds more for that situation — in actions for money only against a non-resident served by publication, the plaintiff must be examined on oath about payments received, must show by affidavit that an attachment issued and was levied on described property, and must normally file an undertaking with approved security before judgment.

Those are demanding requirements, and a judgment entered without them is open to attack as void under 60(b)(4).

And the limit on what a default can award

Rule 55(d) ends with a cross-reference worth following: "In all cases a judgment by default is subject to the limitations of Rule 54(c)." A default judgment cannot exceed or differ in kind from what the complaint demanded.

If you have not been defaulted yet

If the deadline has not passed, respond rather than seeking relief later. See answering a South Carolina summons and responding to a South Carolina complaint.

How South Carolina compares

A short checklist

1. Find out whether a judgment was entered or only an entry of default. Good cause is a much easier test.
2. Check the five grounds. There is no catch-all in South Carolina — if it does not fit, the rule does not reach it.
3. Count one year from entry for mistake, newly discovered evidence and fraud.
4. Consider (4) — void. Bad service or no jurisdiction has no one-year limit.
5. Check whether you got three days' notice if you had appeared.
6. Check whether damages were unliquidated. You were entitled to mailed notice of that hearing even if you never appeared.
7. Attack the fee award separately if the three conditions in 55(b)(3) were not met — and object within 10 days if you have just been served with a fee motion and affidavit.
8. If you were served by publication and never appeared, look hard at Rule 55(b)(4) and 55(e).
9. Get a stay if you need one. The motion does not suspend the judgment.
10. Send the judge a copy of the motion within ten days of filing.

Where these rules live

• S.C. R. Civ. P. 6 — Time
• S.C. R. Civ. P. 12 — Defenses and Objections
• S.C. R. Civ. P. 55 — Default
• S.C. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and what amounts to good cause or excusable neglect is developed in case law this site doesn't cover.