Badham v. Brabham

• Citation: 54 S.C. 400,32 S.E. 444
• Parties: BADHAM. v. BRABHAM.
• Decision Date: 20 March 1899
• Court: United States State Supreme Court of South Carolina

32 S.E. 444

(54 S.C. 400)

BADHAM.

v.BRABHAM.

Supreme Court of South Carolina.

March 20, 1899.

Pleading—Frivolous Answer—Waiver—Appeal —Exceptions—Sufficiency—Judge at Chambers—Powers—Replevin—Counterclaim.

1. A demurrer—filed before issues are adjudicated—to an answer as not stating facts sufficient to constitute a defense does not militate against plaintiff's right under Code, § 208, to move to strike out the answer as frivolous.

2. An exception alleging that the court erred in holding that an answer was frivolous will not be considered, where it fails to specify in what particulars the court erred.

3. After striking an answer as being frivolous, under Code, § 268, the judge cannot, in chambers, render a judgment by default.

4. A counterclaim cannot be filed in an action under the Code to recover specific chattels, where there are no exceptional circumstances entitling defendant to equitable relief.

5. An answer in one paragraph admitting "all the allegations of the said complaint save those or such as are hereafter denied, " and then setting up a defense merely of an affirmative nature, does not deny any of the allegations of the complaint.

6. A seller of chattels does not waive his right to the possession thereof by extending the time of payment of the price, in the absence of an agreement that the right of property was to remain in the buyer during the extension.

Appeal from common pleas circuit court of Barnwell county; R. C. Watts, Judge.

Action by V. C. Badham against H. C. Brabham. Judgment for plaintiff, and defendant appeals. Modified.

James E. Davis, for appellant.

Bellinger, Townsend & O'Bannon, for respondent.

GARY, A. J. The appeal herein is from an order of his honor, Judge Watts, which is as follows: "The above-entitled cause coming on to be heard before me, as presiding judge in the Second circuit, at my chambers, in Bamberg, S. C, on a motion by plaintiff for Judgment on the answer as frivolous, under section 268 of the Code of Civil Procedure: After hearing the complaint, answer, and notice of the motion read, Mr. G. Duncan Bellinger, of counsel for the plaintiff, in support of the motion, and Jas. E. Davis, counsel for the defendant, in opposition thereto, I hold that the answer is frivolous. The complaint alleges that the plaintiff is the owner of certain specific personal property therein described, of the aggregate value of $650, in the possession of the defendant who detains same, and refuses to deliver it to the plaintiff, although he has made a demand for such delivery; stating a cause of action for claim and delivery of specific personal property, under the Code. The answer admits the allegations of the complaint, and attempts to set up certain breaches of covenant or agreement in reference to the sale of certain personal property by plaintiff to defendant, at what price is not stated; also, part payment for such machinery, and an extension of time for the payment of the balance; a taking of said property from the possession of plaintiff under these proceedings of claim and delivery, to his damage in the sum of $2,000, as an affirmative defense, —and for counterclaim denies each and every other allegation in the complaint. The allegations in the complaint having been admitted, it is only necessary to refer to the cases of Williams v. Irby, 15 S. C. 461; Talbott v. Padgett, 30 S. C. 167, 168, 8 S. E. 845; Manufacturing Co. v. Smith, 40 S. C. 529, 19 S. E. 134; and Finley v. Cudd, 42 S. C. 121, 20 S. E. 32, —to see that the answer fails to deny any allegations of the complaint as a defense, or to state any new matter which could avail defendant as an affirmative defense or counterclaim in this action. It presents no issues which can be determined in this action, and is therefore frivolous. Tharin v. Seabrook, 6 S. C. 118; Machine Co. v. Hill, 3 S. E. 82, 27 S. C. 164; Grayson v. Harris, 37 S. C. 607, 16 S. E. 154. It is therefore ordered and adjudged that the answer of the defendant herein be, and hereby is, overruled, as frivolous, and that the plaintiff, V. C. Badham, have judgment thereon against H. C. Brabham, the defendant, for the possession of the property described in the complaint, or six hundred and fifty dollars, the value thereof, in case delivery cannot be had."

The exceptions allege error on the part of the circuit judge in the following particulars: "(1) That his honor, Judge Watts, had no jurisdiction, the issue having already been joined by service of the written demurrer to the defendant's answer, and the said demurrer nothaving been adjudicated. (2) That Judge Watts erred in holding that the answer was frivolous. (3) That he also erred in holding that the property described in the plaintiff's complaint was of the alleged value of six hundred and fifty dollars, whereas the plaintiff demands judgment for the possession of said property, or six hundred and fifty dollars, the value thereof, the two hundred and fifty dollars...