McLaurin v. Eddins

103 S.E. 531, 114 S.C. 193, 1920 S.C. LEXIS 123

Opinion

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an action to foreclose a mortgage. The facts are stated in the decree of his Honor, the Circuit Judge, which will be reported, except the formal part thereof.

1 The first question to be decided is: “Was the Circuit Court in error in holding that the mortgage could only secure the balance of the debt, at the end of 1913?”

In their printed argument the appellant’s attorneys say: “We are aware that Lindsay v. Garvin, 31 S. C. 259, 9 S. E. 862, 5. L. R. A. 219, sustains the Circuit Court on the first question, unless that case is overruled.”

They have not satisfied this Court that said case should be overruled.

2 The second question is: “Was the Circuit Court in error in holding that irrespective of the mortgage debt,the plaintiff could not enter up judgment for the amounts found by the referee to be due, viz., $250.42 and $85.21 and- interest ?”

Although the said indebtedness was not secured by the mortgage, nevertheless the plaintiff was entitled to an order for judgment thereon. Sallinas & Son v. Ellis, 26 S. C. 337, 2 S. E. 121.

3 The last question is: “Was the Circuit Judge in error in granting respondent’s amendments to the ‘case,’ thereby compelling appellant to have the entire record printed?”

The size of the record was enlarged by reason of the fact that the appellant failed to comply with section 8 of rule 5 which requires that “In the final preparation of the case for use in this Court, where amendments have been allowed, they must be incorporated at their proper place.”

The appeal is sustained as to the second question, but dismissed as to the first and last questions.