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Rule 60 – Relief from Judgment or Order

May 14, 2021 | Civil Procedure, South Carolina

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, leave to correct the mistake must be obtained from the appellate court. The ending of a term of court or departure from the circuit shall not operate to deprive the trial judge of jurisdiction to correct such mistakes. 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.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. 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 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. 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.

S.c. R. Civ. P. 60

This Rule 60 is drawn from the Federal Rule. There are minor changes in the language of the Federal Rule. The last sentence of 60(a) was added permitting the trial judge to correct clerical errors even after departure from the circuit. Rule 60(b) deletes subsection (6) of the Federal Rule which permits relief for “any other reason justifying relief from the operation of the judgment.” In the Federal Rule subsection (6) has created ambiguity about what is included.

Finally, Rule 60(b) provides, leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually before the appellate court. This permits the motion to be made before the trial court. The United States Supreme Court approved a similar result in Standard Oil Co. v. U.S., 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976). This change will not, except in civil actions, affect S.C. Supreme Court Rule 24, Motions for New Trial upon After-discovered Evidence, which now requires leave by the Supreme Court before the motion can be made in the trial court.

Rule 60(b) is substantially the same as Code ยง15-27-130. There are two differences. First, existing State law provides for relief from a “judgment taken against him through his mistake.” Rule 60(b) deletes “his” and thus there may be a motion for relief from other mistakes. Second, the statute provides that the relief must be sought within one year. This Rule retains the one year limitation for Rule 60(b)(1)-(3) for mistake, inadvertence, excusable neglect, newly-discovered evidence, and fraud; but permits relief under Rule 60(b)(4) and (5) after one year, but within a “reasonable time” when the judgment is void or the judgment has been satisfied, avoiding the necessity of bringing a new action to set aside the judgment in such cases after one year.

Editor’s Note: Effective September 1, 1990, the Supreme Court Rules were repealed by the South Carolina Appellate Court Rules.

Note to 1994 Amendment:

The amendment to Rule 60(a) and (b) clarifies that leave of the appellate court is necessary to correct a clerical mistake or to make a motion to set aside an order of judgment while the appeal is pending. An appeal is pending from the time the notice of appeal is served until the issuance of the remittitur. See Rules 203, 204 and 221(b), SCACR.

Note to 1998 Amendment:

This amendment adds a requirement to Rule 60(a) that a copy of any written motion be provided to the judge. It is intended to help insure that the judge is promptly notified that the motion has been filed.