Young & Germany Co. v. Price

Supreme Court of South Carolina

Young & Germany Co. v. Price

105 S.E. 346, 115 S.C. 253, 1920 S.C. LEXIS 214

CourtSupreme Court of South Carolina

DecidedDecember 20, 1920

Docket10533

StatusPublished

This text of 105 S.E. 346 (Young & Germany Co. v. Price) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Young & Germany Co. v. Price, 105 S.E. 346, 115 S.C. 253, 1920 S.C. LEXIS 214 (S.C. 1920).

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Opinion

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of Judge Sease striking out defendants’ answer as frivolous, irrelevant, -and immaterial, and the further grounds of the motion were that the answer was libelous, impertinent, manifestly for the purpose of delay, and stated no defense of the action. Affidavits were attempted to be introduced at the hearing of the motion before Judge Sease, but he held that he would disregard and not consider these affidavits, but would determine the matter solely upon the pleadings, which he did, striking out the answer and granting judgment as demanded in the complaint, except he held that no interest should be allowed.

1,2 The order appealed from must be reversed. His Honor did not consider the affidavits presented, and, therefore, must have based his order on the ground that the answer was frivolous. To set an answer or.reply aside on the ground that it is frivolous must appear solely *255 upon an inspection of the pleadings and without argument. An inspection simply must show that it is irrelevant and frivolous. The complaint claims interest in an open account; no allegations that the defendant promised to pay interest or allegations of such a character as would make them liable for interest on an open account. The defendants by their answer deny their liability for interest. This raised issuable fact. The plaintiff could not, under such a motion as they made to strike out the answer at the hearing, offer to forego that part of their claim and thus get judgment, and for the purposes of this motion plaintiff admits allegations of the answer, and by allegation 4 of the defendants’ answer they show why they are in doubt as to the correctness of plaintiff’s claim in the amount claimed by them, and they deny that they owe the amount claimed by plaintiff. His Honor was in error in striking out añswer and in giving judgment, and the order appealed from must be reversed.

3 Notwithstanding the fact that Judge Sease refused to consider the affidavits presented to him and based his order solely on the pleadings, and notwithstanding the decision of this Court that what was not properly before the Circuit Court this Court will not consider, all of the affidavits not considered by Judge Sease'are printed in the case on appeal — a practice not to be commended or countenanced, entailing an expense which the party losing will have to pay.

Judgment reversed.

Messrs. Justices Hydrick and Fraser concur. Mr. Chief Justice Gary and Mr. Justice Gage absent on account of sickness.

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The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of Judge Sease striking out defendants’ answer as frivolous, irrelevant, -and immaterial, and the further grounds of the motion were that the answer was libelous, impertinent, manifestly for the purpose of delay, and stated no defense of the action. Affidavits were attempted to be introduced at the hearing of the motion before Judge Sease, but he held that he would disregard and not consider these affidavits, but would determine the matter solely upon the pleadings, which he did, striking out the answer and granting judgment as demanded in the complaint, except he held that no interest should be allowed.

1,2 The order appealed from must be reversed. His Honor did not consider the affidavits presented, and, therefore, must have based his order on the ground that the answer was frivolous. To set an answer or.reply aside on the ground that it is frivolous must appear solely *255 upon an inspection of the pleadings and without argument. An inspection simply must show that it is irrelevant and frivolous. The complaint claims interest in an open account; no allegations that the defendant promised to pay interest or allegations of such a character as would make them liable for interest on an open account. The defendants by their answer deny their liability for interest. This raised issuable fact. The plaintiff could not, under such a motion as they made to strike out the answer at the hearing, offer to forego that part of their claim and thus get judgment, and for the purposes of this motion plaintiff admits allegations of the answer, and by allegation 4 of the defendants’ answer they show why they are in doubt as to the correctness of plaintiff’s claim in the amount claimed by them, and they deny that they owe the amount claimed by plaintiff. His Honor was in error in striking out añswer and in giving judgment, and the order appealed from must be reversed.

3 Notwithstanding the fact that Judge Sease refused to consider the affidavits presented to him and based his order solely on the pleadings, and notwithstanding the decision of this Court that what was not properly before the Circuit Court this Court will not consider, all of the affidavits not considered by Judge Sease'are printed in the case on appeal — a practice not to be commended or countenanced, entailing an expense which the party losing will have to pay.

Judgment reversed.

Messrs. Justices Hydrick and Fraser concur. Mr. Chief Justice Gary and Mr. Justice Gage absent on account of sickness.

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Bluebook (online)

105 S.E. 346, 115 S.C. 253, 1920 S.C. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-germany-co-v-price-sc-1920.