British & Am. Mortgage Co v. Strait

Citation84 S.C. 141,65 S.E. 1038
CourtUnited States State Supreme Court of South Carolina
Decision Date03 November 1909
PartiesBRITISH & AMERICAN MORTGAGE CO. v. STRAIT et al.

65 S.E. 1038
84 S.C. 141

BRITISH & AMERICAN MORTGAGE CO.
v.
STRAIT et al.

Supreme Court of South Carolina.

Nov. 3, 1909.


1. Judgment (§ 163*)—Default Judgment-Setting Aside.

The court, on motion to set aside a default judgment, cannot decide the merits of the case, but can only determine whether the defense proposed has prima facie merit, without deciding, by the greater weight of the evidence afforded by the affidavits, whether defendant's contention is right or wrong.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 323; Dec. Dig. § 163.*]

2. Judgment (§ 143*)—Default Judgment— Vacating—Grounds.

A default judgment foreclosing a mortgage is properly set aside on defendant's showing that, until he discovered a fact after the judgment, he thought he had no defense to the action, while, if he had known the fact in time, he would have interposed the defense of usury.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 273; Dec. Dig. § 143.*]

3. Appeal and Error (§ 982*)—Ruling on Motion to Vacate Default Judgment— Review.

Rulings on motions, under Code Civ. Proc. 1902, § 195, authorizing the setting aside of a judgment because of surprise or excusable neglect, etc., are within the discretion of the court; and the Supreme Court will not interfere, except in a clear case of abuse.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3877-3S79; Dec. Dig. § 9S2.*]

4. Appeal and Error (§ 224*)—Vacating Default Judgment—Review—Objections in Dower Court.

The court, on appeal from an order vacating a default judgment, cannot consider the point that the notice of the motion to vacate did not state the grounds, where the point was not made in the trial court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1337; Dec. Dig. § 224.*]

5. Judgment (§§ 149, 154*)—Default Judgment—Vacating.

A default judgment which has been assigned may be vacated, though the assignee is not brought before the court: but no right of the assignee will be concluded until he has had his day in court,

[Ed. Note.—For other cases, see Judgment. Cent. Dig. §§ 260, 305; Dec. Dig. §§ 149, 154.*]

6. Judgment (§ 140*)—Default Judgment— Vacating—Grounds.

A default judgment foreclosing a mortgage, which operates to estop the mortgagor from recovering of the mortgagee usurious interest, and a penalty for receiving it, may be set aside, though the judgment has been assigned without recourse, and has been paid.

[Ed. Note.—For other cases, see Judgment, Dec. Dig. J 140.*]

7. Judgment (§ 147*) — Default — Setting Aside—Res Judicata.

A judgment, in an action by a mortgagor against the mortgagee for usurious interest, and the penalty for receiving it, which adjudges that the default judgment foreclosing the mortgage bars the action, is not a bar to a motion to set aside the foreclosure judgment.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 237; Dec. Dig. § 147.*]

8. Appeal and Error (§ 934*) — Presumptions—Entry of Judgment—Notice.

Under Code Civ. Proc. 1902, §§ 300, 301, requiring the clerk to keep a book for the entry of judgments, and providing for the entry of...

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