Gibson v. Bethea

78 S.E. 1025, 95 S.C. 343, 1913 S.C. LEXIS 232

• Court: Supreme Court of South Carolina
• Decided: July 30, 1913
• Docket: 8630
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

The following statement of facts appears in the “Case.”

“This action was brought by the plaintiff to foreclose a mortgage given to her by the defendant, Florence A. Bethea. Bank of Marion was made a party defendant, because it held two mortgages on the premises given by this codefendant, Florence A. Bethea. One of these mortgages had been given to Atlantic National Bank, and subsequently was .assigned to Bank of Marion, and there is no controversey as to this mortgage. On April 10, 1911, a decree for foreclosure was granted. On December 37, 1911, notice was given by Florence A. Bethea, through her attorneys, that she would move on the first clay of the next term of the Court of Common Pleas for Marion county to vacate and set aside the said decree, and that she would move on January 4, 19 IS, for an order staying the proceedings until the motion to vacate the judgment could be heard. Judge Shipp granted an order staying the proceedings, and the motion to vacate the judgment was to have been heard at the next term of Court, but by agreement of counsel, it was taken up at chambers on June 27, 1912. On September 27, 1912, Judge Shipp passed an order adjudging that the decree herein, in so far as it relates to the note and mortgage made by Florence A. Bethea and her husband, P. Y. Bethea, to Bank of Marion be vacated and set aside, and that Bank of Marion be required to serve upon the said Florence A. Bethea its answer in this case. Bank of Marion gave due notice of appeal from this order, and the case comes before this Court upon the exceptions set forth in the record.”

The defendant, Bank of Marion, did not serve its answer on its codefendant, Mrs. Bethea, although its answer asked for the foreclosure of its two mortgages. Mrs. Bethea admits the plaintiff’s mortgage and one of the defendant’s mortgages, but denies the other. Judge Shipp opened the default as to the disputed mortgages. From this order Bank of Marion appealed.

1 It will not be necessary to' consider the exceptions separately. They all question the right of the Judge to' open the default and modify the judgment and are all overruled. It was a matter of discretion, and Judge Shipp made a wise use of his discretion. It appeared from the showing made before him that there was a real issue between Mrs. Bethea and Bank of Marion. It was not his province to determine the facts upon the showing, but to determine whether there was a real controversy or not, and whether she had had “her day in Court.” He found that there was a controversy. ’ This is indisputable. He found that she has not had her day in Court. She has not.

It is said that defendants are not required to serve their answer on their codefendants when the relief granted arises out of the facts alleged in the complaint. That is true, but when they have an answer in which affirmative relief is asked against the codefendant and do not serve the answer on the defendant, they are liable to have the judgment set aside.

2 Plaving held that the order was within the discretion of the Circuit Judge, and that there was no abuse of discretion, no other question arises except to say that he was also right in holding that the attorney’s fee was not due at the time of the order. The recent case, Coley v. Coley, 94 S. C, 383, shows that an attorney’s fee of ten per cent, is not a matter of course, even though provided for in the note and mortgage.

The order appealed from is affirmed.

Mr. Justice; Hydrick. The rule in equity is that the Court can adjust equities between defendants, when they arise out of allegations in the complaint, supported by proof. But when one defendant seeks affirmative relief against another, which does not so arise, he must serve a cross-answer, stating the facts out of which the relief which he prays for arises.

The complaint alleges that Bank of Marion “claims a lien upon said premises prior to plaintiff’s lien, by virtue of certain mortgages on said premises, one of which said mortgages * * * was assigned and transferred to Bank of Marion by the Atlantic National Bank.”

This sufficiently alleges that said bank held at least two mortgages over the premises to warrant the Court in giving judgment thereon in the absence of any defense. Parties should not be allowed to trifle with the Court by fail ing to answer and defend under such an allegation, and, when judgment is given against them, seek to set it aside.

I concur in affirming the order appealed from, because this motion was based upon other grounds which warranted the Court in guarding it.