Columbia National Bank v. Rizer

157 S.E. 624, 159 S.C. 451, 1931 S.C. LEXIS 232

• Court: Supreme Court of South Carolina
• Decided: March 16, 1931
• Docket: 13092
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Cothran.

This action, commenced December 27, 1928, is upon three notes executed by the defendant to the plaintiff bank, dated March 12, 1928, aggregating $25,000, upon which there is alleged to be due $13,351.45 with interest and attorney’s fees.

Though it is not specifically so stated in the transcript, it does not appear that there is any controversy between the parties as to the amount due upon the notes.

The defendant interposed a counterclaim for damages upon the ground that the bank breached its contract to furnish him with certain funds to carry on his mercantile and agricultural interests.

At the conclusion of the testimony the plaintiff moved for the direction of a verdict in its favor upon the notes and upon the defendant’s counterclaim. The motions were granted. The record does not show the amount of the verdict, or indeed that a verdict was rendered, although the counsel for the defendant state in their brief that a judgment was entered upon “the verdict so directed by the Court.” The exceptions raise only the question of the correctness of the Judge’s order directing a verdict in favor of the plaintiff upon the defendant’s counterclaim although the record does not show that any such verdict was rendered.

If there was a judgment, it must have been for the balance appearing to be due upon the notes, and from it the defendant may have appealed, basing his appeal upon the ground that his counterclaim had been disallowed. There being no appeal from that judgment, the appellant is not rectus in curia and his appeal is subject to dismissal.

Notwithstanding this, we have reviewed the facts of the case and find no just ground of complaint against the ruling of the Circuit Judge.

The judgment of this Court is that the appeal be dismissed and the order of the Circuit Judge be affirmed.

Messrs. Justices Blease and Stabler, and Mr. Acting Associate Justice Mendel L. Smith concur. Mr. Justice Carter did not participate.