Opinion
13974
January 11, 1935.
Before MANN, J., Lee, March, 1933. Affirmed.
Action by the Virginia-Carolina Chemical Corporation against the Tweed-Lumber Company, E.L. Cooper, and Ethel C. (Mrs. G.H.) McCutchen. From an order striking certain matter from the answer of defendant Cooper, he appeals.
The complaint, omitting its formal allegations, the answer of defendant E.L. Cooper, and the order of the Circuit Judge, directed to be reported, are as follows:
COMPLAINT5. That heretofore, to wit, on or about the 16th day of March, 1929, for value received, R.O. McCutchen, as administrator, and Mrs. G.H. McCutchen, as administratrix of the estate of G.H. McCutchen, made, executed, and delivered to Virginia-Carolina Chemical Corporation their certain note wherein and whereby they promised to pay to the order of the said Virginia-Carolina Chemical Corporation on the 15th day of October, 1929, the sum of $3,304.26, with interest thereon at the rate of 8 per cent. per annum from the 1st day of April, 1929, until paid, together with all costs of collection, including 10 per cent. attorney's fees, if collected by law or through an attorney at law; and on the 7th day of May, 1930, for better securing the payment of said note and the money to become due thereon according to the terms thereof, Mrs. Ethel C. (Mrs. G.H.) McCutchen executed and delivered to this plaintiff, Virginia-Carolina Chemical Corporation, a mortgage therein and thereby conveying to this plaintiff, Virginia-Carolina Chemical Corporation, a mortgage on the following described property, to wit: [A description of the property is omitted herefrom as unnecessary.]
6. That on the 14th day of May, 1930, said mortgage was duly recorded in the office of the Clerk of Court for Sumter County in Book 96, page 172; and in the office of the Clerk of Court for Lee County on the 9th day of May, 1930, in Book 33, page 596.
7. That subsequent to the execution of said note and mortgage and subsequent to foreclosure proceedings instituted on said mortgage, to wit, on the 15th day of July, 1932, the defendant Mrs. Ethel C. (Mrs. G.H.) McCutchen conveyed to Tweed-Lumber Company, a corporation, all timber and trees on the tract of land above described, together with certain rights for the removal of said timber from said lands, which said timber deed was recorded in the office of the Clerk of Court for Sumter County in Book B5 at page 52.
8. That on or about the 19th day of May, 1932, an action was commenced in the Court of Common Pleas for Lee County, State of South Carolina, by the Virginia-Carolina Chemical Corporation, the plaintiff herein, for the foreclosure of said mortgage against the lands described and set forth in said mortgage, and embracing the tract of land above described, which said action resulted in a judgment and decree of foreclosure of said mortgage.
9. That pursuant to the terms and conditions of said decree, the Clerk of Court for Lee County, S.C. offered for sale the premises described and set forth in said mortgage on salesday, in November, 1932, being the 7th day of said month, at public auction, to the highest bidder, and within thirty days thereafter, accepted the bid of E.L. Cooper for the above-described premises, and filed his report thereon on the . . . . . . day of January, 1933, showing the disbursements of the proceeds of such sale, and a deficiency therein of $2,006.94, all of which will appear by reference to Judgment Roll No. 3356, enrolled in the office of the Clerk of Court for Lee County, S.C.
10. Upon information and belief, that the defendants, their agents, servants, or employees, subsequent to the execution, delivery, and recordation of said mortgage as security for said debt and prior to said sale in foreclosure, did cut and remove said timber and trees from said tract of land.
11. That by reason of the cutting and removal of said timber and trees from said tract of land, the value of said tract of land, as security for the debt due this plaintiff upon the note and mortgage aforesaid, was greatly reduced and lessened, and the security of the said mortgage was greatly reduced, lessened, and impaired, and, by reason of the said acts of the defendants, the said value and security was thereby so lessened and impaired that the property did not sell for a sufficient amount to pay the debt due plaintiff and this plaintiff has suffered damages in the sum of $2,006.94.
12. That the plaintiff is informed and believes that the defendant E.L. Cooper has wrongfully received the proceeds from the sale of the timber cut off the above-described property, the same having been paid to him by the defendant Tweed-Lumber Company, and although due demand has been made therefor, he refuses to pay any portion of this money over to the plaintiff.
Wherefore, the plaintiff prays judgment against the defendants for the sum of $2,006.94, damages suffered as aforesaid, and for the costs and disbursements of this action; and for such other and further relief as may be just and proper.
ANSWER OF E.L. COOPERThe defendant E.L. Cooper, one of the defendants herein, answering the complaint of the plaintiff herein, alleges:
FOR A FIRST DEFENSEThat this defendant denies each and every allegation in said complaint contained.
FOR A SECOND DEFENSE1. That this defendant denies all allegations of the complaint except such as are hereinafter specifically admitted.
2. That this defendant admits the allegations of Paragraphs 1, 2, 3 and 4 of the complaint;
3. That this defendant does not have sufficient information or knowledge to form a belief as to the allegations of Paragraphs 5, 6, 7, 8 and 9, and requests strict proof of same, except as to Paragraph 9, this defendant alleges he purchased the land in question as well as the timber rights of plaintiff in the same.
4. That this defendant denies the allegation of Paragraph 10, so far as he and his agents, servants, or employees are concerned.
5. That this defendant denies the allegations of Paragraphs 11 and 12 and alleges that the land brought the plaintiff its full value and more than the plaintiff was asking for the land, the timber thereon, and its judgment, and that plaintiff has suffered no damage; that the tract of land with the standing timber was worth no more than $2,500.00 and that the plaintiff in October, 1932, was ready and willing to sell all of its rights in the debt and the judgment in question, at and for the sum of $3,000.00, out of which plaintiff was to pay all costs and taxes and that this defendant paid more for the land and timber rights than $3,000.00, still leaving to plaintiff the deficiency judgment upon which this plaintiff, so this defendant is informed and believes, placed some value.
FOR A THIRD DEFENSEThat this defendant is informed and believes that the plaintiff has not exhausted its remedies under its deficiency judgment against the codefendant Mrs. Ethel C. McCutchen and that until this is done plaintiff's damages, if such there were or are, cannot be determined.
FOR A FOURTH AND FURTHER DEFENSEThat some time during October, 1932, this defendant unrepresented by counsel, was present at a conference at which were present this defendant, codefendant Tweed-Lumber Company by one of its officers and its attorney, and plaintiff by its attorney; that understanding was had by which this defendant understood that the purchaser of the land in question at judicial sale would purchase also all the timber rights of the plaintiff, and that also all moneys deposited in escrow derived from the timber; that acting under this impression the defendant raised plaintiff's bid of $2,000.00, before confirmation of the thirty-day period of the judicial sale, to the sum of $3,105.00, which purchase price defendant understood included all questions of the timber, and which was approximately $600.00 more than defendant would have otherwise bid or paid for said land which was to be an accounting in full by him, and which was as much or more than the land and timber were worth; and which should have also included the turning over to this defendant the sum of $60.00 held in escrow by George D. Levy, Esquire, and Clarke W. McCants, Esquire; that George D. Levy, Esquire, plaintiff is informed and believes has made demand upon Clarke W. McCants, Esquire, his coholder of the escrow, for the same and has sent check, payable to defendant to Clarke W. McCants, Esquire, for his signature, but that said Clarke W. McCants, Esquire, has failed to execute jointly with George D. Levy, Esquire, the said check, and that said sum is still held by said two attorneys in escrow, and that this defendant is properly entitled to the same; and that the said George D. Levy, Esquire, did not then, nor does he now, represent as counsel this defendant.
Wherefore, this defendant prays that the complaint be dismissed as against him, and for the costs of this action, and further that the sum of $60.00 now held in escrow as above stated, be directed to be paid to him.
ORDERThis case is before me on a motion of plaintiff's counsel to strike out certain portions of the answer of the defendant E.L. Cooper, upon the ground that the same are irrelevant, redundant, and constitute no legal defense to plaintiff's cause of action. This motion was marked heard by me while presiding over the Court at Bishopville, Lee County, and it was agreed that I should hear the motion at chambers.
The motion was fully argued before me by counsel for the plaintiff and the defendant, E.L. Cooper, and I have given consideration to those portions of the answer sought to be stricken out and I am clearly of the opinion that there can be no question but that the allegations referred to should be regarded as irrelevant and inappropriate to the cause of action set forth in the complaint. Moreover, if proven. I am satisfied the allegations would not defeat the plaintiff's right to recover for the timber cut on lands whereon it held a mortgage. These being my views, I am impelled to grant the motion of plaintiff's counsel, and therefore it is ordered and adjudged that the following be stricken out of the answer of the defendant, E.L. Cooper, upon the ground that the same is irrelevant and constitutes no legal defense to the cause of action set forth in the plaintiff's complaint:
In Paragraph 5 of said answer, commencing with the words "and alleges" and ending with the words "some value."
The entire third defense set forth in the said answer, commencing with the words "that this defendant" and ending with the words "can not be determined."
The whole of the fourth defense commencing with the words "that some time" and ending with the words "this defendant."
Mr. Wendell M. Levi, for appellant, cites: Pleadings: 97 S.C. 389; 81 S.E., 665; 50 S.E., 544; 4 Ann. Cas., 58; 139 S.C. 324; 138 S.E., 34; 59 So., 348; 199 F., 195; 184 Ala., 452; 63 So., 518; 48 So., 419; 49 So., 922.
Mr. Clarke W. McCants, for respondent, cites: As to pleadings: 44 S.C. 144; 97 S.C. 384; 138 S.E., 34. When allegation irrelevant: 50 S.C. 54; 27 S.E., 545; 73 S.C. 21; 18 S.C. 473; 73 S.C. 29. Timber part of realty: 12 Rich. L., 314; 38 C.J., 153; 80 S.C. 106; 57 A.L.R., 451; 140 S.E., 761; 141 S.E., 410; 132 S.C. 16; 128 S.E., 876; 41 A.L.R., 592; 45 S.C. 642; 24 S.E., 300.
January 11, 1935. The opinion of the Court was delivered by
This appeal challenges the correctness of the ruling of the Circuit Judge in striking from the answer of the appellant, Cooper, as "irrelevant," a portion of the second defense, and all of the third and fourth defenses. Let the complaint, omitting its formal allegations, the answer, and the order of the Circuit Judge be reported.
No attack, either by demurrer or motion, was made upon the complaint, but appellant, by answer, sought to interpose four separately pleaded defenses thereto: The first, a general denial; the second, a combination of denials and new matter by way of avoidance; while the third and fourth defenses, denying none of the averments of the complaint, were pleas in the nature of a confession and avoidance.
The exceptions raise but two questions, which, considered in inverse order, are as follows: Was the new matter alleged in the second, third, and fourth defenses "irrelevant"; and, if so, should it have been eliminated from appellant's pleading by demurrer, rather than by motion to strike?
"An answer or a defense is irrelevant which has no substantial relation to the controversy between the parties to an action." Burkhalter v. Townsend, 139 S.C. 324, 138 S.E., 34, 37. "An allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action." Smith v. Smith, 50 S.C. 54, 27 S.E., 545, 551. It is patent that the new matter contained in the second and third defenses is wholly irrelevant to the controversy between the parties to this appeal; indeed, it might be termed frivolous — the issue raised by a denial thereof could have no possible connection with, or effect upon, the cause of action which plaintiff sought to declare upon. Likewise, a careful consideration of the fourth defense forces the conclusion that the Circuit Judge properly adjudged the same to be irrelevant. It will be observed that no contract or agreement is relied upon to relieve appellant from liability for the wrongful acts with which plaintiff attempted to charge him, the commission of which is admitted by his failure, in such defense, to deny any of the allegations of the complaint; that there is no averment as to whom his "understanding" was with, or from whom he received his "impression" — whether from his codefendant, the lumber company, or from plaintiff's attorney; certainly there is no specific allegation of any enforceable agreement between appellant and any agent or representative of respondent, having authority from the latter, to release him from responsibility for an alleged tort committed prior to the sale, and it cannot be contended that an attorney at law in an action in foreclosure, in the absence of allegation and proof of specific authority so to do, can bind his client by an engagement to relieve from liability a stranger to the suit in foreclosure who has wrongfully impaired the value of the mortgagee's security. It follows, therefore, as a matter of course, that appellant's "understanding" and "impression" were wholly irrelevant to the issue as to his responsibility for an alleged delict theretofore committed. The second exception is overruled.
With reference to the first exception, appellant's counsel urges, in effect, that an entire defense can be removed from an answer by demurrer only, and not by a motion to strike, the latter remedy being properly employed to eliminate from an answer or defense, otherwise good, only such portion thereof as is irrelevant, which last-mentioned contingency is provided for in Section 478 of the Code. Under his own argument, therefore, the irrelevant matter contained in the second defense, and constituting a part only of such defense, was properly stricken under the provisions of such section.
On the other hand, Section 470 of the Code specifically authorizes the striking of entire (1) answers and (2) defenses when they are (1) sham or (2) irrelevant, and the practice of striking a defense in its entirety, when the same is irrelevant, has been recognized and approved by this Court. See Harman v. Harman, 54 S.C. 100, 31 S.E., 881, where an objection similar to that presented here was disposed of as follows: "The foregoing words constitute the entire allegations of the defendant's third defense. * * * 'The rule, as stated in its general form, is that each defense must be sufficient in itself, in its material allegations or its denials, to constitute an answer to the cause or causes of action against which it is directed, and thus to defeat a recovery thereon. * * * Each must, in its composition, be complete, sufficient, and full. It must stand on its own allegations. It cannot be aided, or its imperfect and partial statement helped out, by matter found in another defense, unless such matter is expressly referred to, and in an express manner adopted or borrowed from that other, and made a part of itself.' * * * The allegations of the third defense are insufficient within themselves, and it was not error on the part of the Circuit Judge to strike them out as irrelevant." (Italics ours.) The same practice was recognized, at least inferentially, in Burkhalter v. Townsend, supra, where it was stated: "The motion of the plaintiff is directed against the entire answer as irrelevant, and not to the separate defenses severally." (Italics ours.) As urged by counsel for appellant, plaintiff might have demurred to the third and fourth defenses for insufficiency, since he was endeavoring to eliminate such defenses in their entirety, but the last-cited section of the Code, and the authorities mentioned, constitute full authority and precedent for striking, for irrelevancy, either (1) an entire answer or (2) an entire separately-pleaded defense.
Moreover, the record here does not show that this point was made upon the hearing below, and the Harman case, supra, is authority for the position that it cannot be relied upon in this Court. By reference to the last paragraph of the opinion in that cause (page 883 of 31 S.E.), it will appear that defendant, on appeal, contended that his counterclaim could not be stricken on motion, that a demurrer should have been interposed thereto, and the Court held: "The 'case' fails to show the very material fact that the appellant upon the hearing of the motion in the Court below objected to the mode of proceeding on the part of the plaintiffs on the ground that the defendant's counterclaim could not be stricken out on motion, but that, if the plaintiffs could take advantage of the manner in which said counterclaim was stated, their only remedy was by demurrer. But, even if there was error on the part of the Circuit Judge, it was harmless, as the alleged defamatory words were not actionable, and not properly pleadable in this case." So here, even if the point now urged was made before Judge Mann, which does not appear from the "case," as it should, his error was harmless, since the matter stricken from the answer did not constitute a defense, and the same was not properly pleadable in the case.
It may be pertinent to add that, under the system of pleading and procedure which obtained in this jurisdiction prior to the adoption of the Code, the objection to striking answers and defenses in their entirety, for irrelevancy, instead of eliminating them by a demurrer for insufficiency, was predicated upon the fact that, when they were removed from the pleading upon a motion to strike, the losing party could not plead over, whereas, upon the Court's sustaining a demurrer, such party was ordinarily permitted to plead further. Under the provisions of Section 470 of our Code, however, which authorizes the striking, for irrelevancy, of entire answers and defenses, upon such terms as the Court may, in its discretion, impose," we are inclined to the view that it matters not to the losing party whether his "irrelevant pleading" be removed by motion to strike, or by demurrer.
The exceptions are overruled, and the order of Judge Mann is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE C.J. RAMAGE concur.