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2008-MO-036 - Gore v. Beneficial Mortgage Co. of South Carolina

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

John A. Gore, Respondent,

v.

Beneficial Mortgage Co. of South Carolina, Petitioner.


ON WRIT OF CERTIORARI
To the Court of Appeals


Appeal From York County
S. Jackson Kimball, III, Special Circuit Court Judge


Memorandum Opinion No. 2008-MO-036
Submitted August 6, 2008 – Filed August 11, 2008


VACATED IN PART


C. Mitchell Brown, B. Rush Smith, III, and Thad H. Westbrook, all of Nelson Mullins Riley & Scarborough, of Columbia, for Petitioner.

John Martin Foster, of Rock Hill, for Respondent.


PER CURIAM:  Petitioner seeks a writ of certiorari to review the Court of Appeals’ decision dismissing its appeal without prejudice.  We grant the petition as to the question of whether the Court of Appeals erred in including a finding related to the merits of the appeal in its opinion dismissing the appeal as interlocutory, dispense with further briefing, and vacate the decision of the Court of Appeals on that issue.  The petition for a writ of certiorari is denied as to petitioner’s remaining questions.

In its opinion dismissing petitioner’s appeal without prejudice, the Court of Appeals found the special circuit judge had the power to hear and rule upon respondent’s motion to restore.  The Court of Appeals drew a distinction between a want of jurisdiction, in which case the court has no power to adjudicate, and a mistake in the exercise of jurisdiction, in which case the action of the trial court is not void, though it is subject to direct attack.

The Court of Appeals should not have included its finding concerning jurisdiction.  Even if the special circuit judge did not have jurisdiction, his order was not immediately appealable.  Deskins v. Boltin, 319 S.C. 356, 461 S.E.2d 395 (1995);  Woodard v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995), overruled on other grounds by Saab v. S.C. State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002).  Because the order was not immediately appealable, the Court of Appeals should not have addressed the merits.  Therefore, we vacate the portion of the Court of Appeals’ decision addressing the special circuit judge’s jurisdiction. 

VACATED IN PART.

WALLER, ACTING CHIEF JUSTICE, PLEICONES, BEATTY and KITTREDGE, JJ., concur. TOAL, C.J., not participating.