Opinion
13749
January 9, 1934.
Before STOLL, J., Williamsburg, November, 1932. Reversed and remanded for a new trial.
Action by G.D. Oswald, Jr., against O.G. Huggins, in which Daniel Blake intervened and filed a counterclaim. From an order, sustaining plaintiff's motion to strike out intervener's answer and counterclaim and strike out defendant's answer, counterclaim, and reply, and a judgment for plaintiff, intervener appeals.
The order of Judge Stoll is as follows:
This matter comes before me on motion of Reynolds Reynolds, plaintiff's attorneys, to strike out the answer and counterclaim of the defendant Daniel Blake and the answer and reply of the defendant O.G. Huggins as sham and frivolous and irrelevant and redundant.
It appears from the pleadings, and statements of attorneys, that one E.A. Hamilton, the agent of the defendant Daniel Blake sold to the defendant O.G. Huggins one 150 horse power Casey-Hodges boiler, and the defendant Huggins executed to the said Hamilton his note in the sum of gins executed to the said Hamilton his note in the sum of $500.00 secured by chattel mortgage of said boiler. Said note and mortgage were dated the 9th day of February, 1932, and on the same day the mortgage was duly recorded in the office of the clerk of Court for Williamsburg County, S.C. and thereafter, to wit, on the 25th day of July, 1932, and before maturity, was assigned for value to the plaintiff, G.D. Oswald, Jr. The note was made payable August 9, 1932.
Upon the maturity of the note the defendant Huggins refused to pay plaintiff, and plaintiff then brought suit on the note and asked for a foreclosure of the mortgage. The defendant Huggins by his answer and reply admitted the execution of the note and mortgage in question, and that the said note and mortgage were transferred and assigned unto the plaintiff in this action, who is now the owner thereof, but that his co-defendant, Daniel Blake, claimed the boiler, and that he does not know to whom to make payment and desires instructions from the Court in the premises. The defendant, Daniel Blake, by his answer and counterclaim, admitted that Hamilton was his agent and was authorized to sell the boiler under instructions to be given by another representative of the said Daniel Blake. That the said Hamilton sold the boiler in question to the defendant Huggins, who executed and delivered to Hamilton his promissory note in the sum of $500.00 and an instrument purporting to be a chattel mortgage of said boiler, but that said note and mortgage have never been assigned to him (Blake). The answer and counterclaim also deny any knowledge or information sufficient to form a belief as to the truth of the plaintiff's allegation that he is a holder in due course before maturity and for value, and further alleges that the sale of the boiler by Hamilton to Huggins was in violation of the instructions given to Hamilton, and that Hamilton had no authority from the defendant Blake to make the sale, and the sale so made passed no title to the defendant Huggins. But, in his prayer for judgment, the defendant Blake merely prays that the complaint be dismissed insofar as it seeks a seizure and sale of said boiler under the chattel mortgage alleged in the complaint; that this defendant (Daniel Blake) have judgment that the said boiler be delivered to him, or, in case delivery cannot be had, that this defendant have judgment against his co-defendant Huggins, for the value of said boiler, namely, the sum of $500.00, together with his costs.
The pleadings show beyond any doubt that Hamilton was the agent of the defendant Blake, and that he sold the boiler in question to the defendant Huggins, and took therefor the note and mortgage of Huggins, payable to E.A. Hamilton, and thereafter and before maturity assigned same to the plaintiff, who is now the owner and holder, and there is nothing in the pleadings to show that plaintiff had any notice of any fraud or infirmity affecting the note and mortgage. Further, the defendant Daniel Blake, by his answer and counterclaim, does not undertake to defeat plaintiff's recovery on the note in question, but undertakes to separate the note from the mortgage, and asks judgment against his co-defendant, Huggins, for the possession of the boiler, or the value thereof, to wit, $500.00. To allow the plaintiff to recover judgment on the note against the defendant Huggins and the defendant Blake to recover possession of the boiler, or the value thereof against the defendant Huggins, would be unjust and wholly inequitable, especially in view of the fact that Hamilton was the agent of defendant Blake and defendant Blake had placed the power in Hamilton to bring about the wrong or commit the fraud, if any fraud were committed.
In view of the above and the fact that the note was a negotiable note assigned to plaintiff before maturity for value, it necessarily follows that the mortgage is clothed with negotiability and must follow the note, and there is no fact left to be decided by a jury. National Bank of Commerce of Norfolk v. Munn, 134 S.C. 297, 131 S.E., 432; 41 C.J., 696.
It is therefore ordered that the answers, counterclaim, and reply of the defendants be, and the same are hereby stricken out as sham, frivolous, irrelevant and redundant.
It is further ordered that the plaintiff have judgment against the defendant O.G. Huggins on the note in question for the sum of $500.00 principal, together with $53.50 interest from February 9, 1932 to date of this order, and a 10 per cent. attorney's fee of $50.00, as provided in said note, aggregating in all the sum of $603.50, and for the costs and disbursements of the action.
And it is further ordered that, in case said judgment is not paid within fifteen days from the date of this order, or in case of appeal by any of the parties hereto, then within fifteen days from the final determination, if said order is upheld, the sheriff of Williamsburg County shall seize said boiler and proceed to sell the same after due and legal notice and apply the proceeds of sale to the satisfaction of the debt. And in case any surplus remains after the payment of the judgment herein, same shall be held for further order of this Court.
Messrs. B. Allston Moore and Huger, Wilbur, Miller Mouzon, for appellant, cite: As to motion to strike out irrelevant and redundant matter: 71 S.C. 1; 97 S.C. 389; 134 S.C. 493; 139 S.C. 324; 97 S.C. 389; 130 S.C. 404; 101 S.C. 185; 100 S.C. 196; 106 S.C. 544. Frivolous answer: 136 S.C. 453; 115 S.C. 253; 21 R.C.L., 908; 2 C.J., 583; 129 S.C. 226; 133 S.C. 340.
Messrs. Reynolds Reynolds, for respondent, cite: Motion to strike: Sec. 470, Code 1932; 97 S.C. 389; 105 S.C. 519; 101 S.C. 188; 6 S.C. 279; 143 S.C. 297; 41 C.J., 696.
January 9, 1934. The opinion of the Court was delivered by
This action, commenced November 5, 1932, in the Court of Common Pleas for Williamsburg County by G.D. Oswald, Jr., as plaintiff, against the defendant O.G. Huggins, is for the foreclosure of a certain chattel mortgage executed by the defendant O.G. Huggins unto E.A. Hamilton, given as security to the payment of a certain note executed by the said O.G. Huggins unto he said E.A. Hamilton, and alleged to have been transferred for value before maturity unto the plaintiff. The defendant O.G. Huggins, in due course, filed an answer in the cause admitting, in effect, all of the material allegations of the complaint, except as to the alleged assignment of the papers unto the plaintiff for value before maturity, and stated that he did not have sufficient information to form a belief as to the truth of this allegation made by the plaintiff. Thereafter, Daniel Blake, on petition presented to the Court, was allowed to intervene in the cause and to serve an answer and set up a counterclaim regarding his alleged interest in the property described in the mortgage in question. To this answer and counterclaim the plaintiff, G.D. Oswald, Jr., and the defendant O. G. Huggins filed reply. The plaintiff, G.D. Oswald, Jr., subsequently gave notice of a motion before Honorable P. H. Stoll, Judge of the Third Circuit, at his chambers, Kingstree, S.C. to strike out the answer and counterclaim of the defendant Blake as sham and frivolous and, also, upon the ground that the said allegations interposed by the defendant Blake were irrelevant and redundant.
Upon the hearing in the cause by Judge Stoll, his Honor sustained the motion of the plaintiff and ordered the answers, counterclaim, and reply of the defendants stricken out as "sham, frivolous, irrelevant and redundant"; and, also, ordered judgment for the plaintiff against the defendant O. G. Huggins on the note in question for the sum of $500.00 as principal and interest and attorneys' fees thereon, aggregating the sum of $603.50, and, also, for the costs in the action. In the said order, his Honor, also, directed that in case the said judgment was not paid within fifteen days from the date of the said order, "or in case of appeal by any of the parties hereto, then within fifteen days from the final determination if said order is upheld," that the sheriff of Williamsburg County should seize the property covered by the mortgage and sell the same after legal notice and apply the proceeds to the satisfaction of the debt involved.
From the said order and judgment thereon, the defendant Blake has appealed to this Court. In our opinion the pleadings raised material issues, and, therefore, should not have been stricken out, but evidence should have been received as to the truth of the same.
The judgment is therefore reversed, and the case remanded for a new trial.
MR. CHIEF JUSTICE BLEASE, MESSRS. JUSTICES STABLER and BONHAM, and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.