Thursday, November 08, 2007

S.C. Supreme Court holds that Section 18-9-130 does not grant the trial the power to stay execution of judgment in an appeal from a Rule 60 motion

In Stearns Bank v. Glenwoodfalls, dealt with a default judgment, a rule 60 motion to set aside the judgment, and then an appeal from the denial of the Rule 60 motion. Months after respondent appealed the denial of its Rule 60(b) motion, it filed a motion in circuit court seeking to stay the underlying default judgment pending disposition of the appeal. Following a hearing, the circuit judge issued an order refusing respondent’s request that he stay appellant’s right to execute on the judgment during the Rule 60 appeal, but holding that if appellant wished to do so, it must post a bond or undertaking pursuant to § 18-9-130.

Section 18-9-130 provides:

(A)(1) A notice of appeal from a judgment directing the payment of money does not stay the execution of the judgment unless the presiding judge before whom the judgment was obtained grants a stay of execution.

The Supreme Court held that relief under 18-9-130 was unavilable because there was no money judgment that had been appealed. An order denying the Rule 60(b), SCRCP, motion is not “a judgment directing the payment of money.”

[W]hen a debtor appeals the denial of its 60(b) motion, Rule 225, SCACR, which governs stays on appeal, comes into play. The general rule is that an appeal acts as an automatic stay of the relief granted below, subject to certain exceptions. Id. Rule 60(b) denials are not subject to an exception, nor is there any logical reason why they would be. The denial of such a motion grants no relief: that “no relief” is automatically stayed leaves the parties in the exact position they were in before the 60(b) motion and appeal, that is, the original judgment is unaffected.

The moral of the story is that if you are hit with a default judgment, remember that 18-9-130 provides no relief. Also remember to make use of Rule 60(b)(2), which provides that "In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition…of a motion for relief…made pursuant to Rule 6o." The judgment debtor should have filed such a motion in this case, but did not.

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