Supreme Court of South Carolina, 1978

Cummings v. South Carolina State Highway Department

Supreme Court of South Carolina · Decided June 7, 1978 · Ness, Lewis, Littlejohn, Rhodes, Gregory, JJ-

245 S.E.2d 127; 271 S.C. 89; 1978 S.C. LEXIS 278 (South Eastern Reporter, Second Series)

Cases that cite this one

3 later published cases cite this decision.

City of Sumter Police Department v. One (1) 1992 Blue Mazda Truck (S.C. Ct. App. 1998)
McDaniel v. South Carolina Department of Public Safety (S.C. Ct. App. 1996)
Yeargin v. South Carolina Department of Highways & Public Transportation (S.C. 1993)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

Ness, Justice:

This appeal is from an order refusing to re-open a DUI case and upholding a previous order amending the period of suspension imposed by ¿appellant South Carolina Highway Department. We reverse.

Respondent Cummings was convicted of DUI (second offense) on May 22, 1973. For reasons not revealed in the record, the conviction was not reported to the Highway Department until three years later. Although respondent’s conviction was one of second offense, the Department’s records disclosed two prior violations, occurring in 1963 and 1967. Pursuant to Code Section 56-5-2990, respondent’s license was suspended for two years on June 1, 1976.

Respondent served a rule to show cause and complaint on appellant seeking to set aside the suspension and to restore his driving privileges. The trial judge denied the relief requested, but sua sponte amended the period of suspension to one year.

Appellant thereafter moved to re-open the case in order to provide the court with the factual basis upon which the *91 two year suspension was founded. The trial judge denied this motion and continued his order altering the period of suspension.

We do not believe the trial court _ abused its discretion by refusing to re-open the judgment under Code Section 15-27-130. The Highway Department’s failure to introduce respondent’s driving records at the rule to show cause hearing constituted neglect, but not excusable neglect as required by the statute.

However, the trial court erred in amending the period of suspension imposed by appellant. The Highway Department was exercising its mandatory duty under Code Section 56-5-2990 and the trial court had no discretion in the matter. See Parker v. State Highway Dept., 224 S. C. 263, 78 S. E. (2d) 382 (1953), and Brewer v. South Carolina State Highway Dept., 261 S. C. 52, 198 S.E. (2d) 256 (1973).

After the error of the court in altering the suspension time was called to its attention, it should have vacated its previous order. In failing to vacate the order, which would have, in effect, restored the two year suspension, the court erred and is accordingly reversed.

Affirmed in part; Reversed in part.

Lewis, C. J., and Littlejohn, Rhodes and Gregory, JJ-, concur.

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