Bank of Fort Mill v. Rollins
| Decision Date | 24 August 1950 |
| Docket Number | 16398. |
| Citation | 61 S.E.2d 41,217 S.C. 464 |
| Parties | BANK OF FORT MILL v. ROLLINS. |
| Court | South Carolina Supreme Court |
[Copyrighted Material Omitted]
The order of Judge Moss follows:
The Summons and Complaint in this action were served upon defendant on February 1st, 1949. Thereafter, defendant, through his attorneys, field his Answer to the Complaint service of which was accepted by attorneys for plaintiff, on February 21st, 1949. On the original Summons and Complaint is the notation, signed by counsel for plaintiff, that this case should be docketed on Calendars No. 1 and No. 2, which notation is dated March 1st, 1949, and it appears that the case was duly docketed.
Since the date when this case was entered upon the docket, as above stated, there have been two terms of Common Pleas Court in Chester County but it was not disposed of at either of those terms.
Thereafter, on July 21st, 1949, attorneys for plaintiff gave Notice of Motion, to be heard before me in York, South Carolina, on July 30th 1949, for an Order striking the Answer of defendant on the grounds that said Answer was sham, false and frivolous, intended only for delay, and constituted no defense to this action; and, further, for judgment against defendant as demanded in the Complaint, in the event that it should be adjudged that the Answer be struck and dismissed. Attorneys for defendant admitted, in writing, that this Notice of Motion had been served upon them, and that they had retained a copy of said Notice, on July 21st, 1949.
This action is thus before me on the Motion to strike the defendant's Answer, and for judgment against defendant as demanded in the Complaint, in the event that it was determined that the Answer should be stricken out and dismissed.
At the hearing of this Motion, I had before me the original Summons and Complaint, the original Answer, the Original Notice of Motion to strike the Answer and for judgment, and the original check which is the basis for this action. Counsel for both parties presented able arguments in support of their respective positions.
The Complaint, which is verified, alleges that plaintiff is a banking corporation, chartered under the laws of South Carolina, with its principal place of business in Fort Mill, South Carolina; that defendant is a resident of Chester County; that defendant executed, signed and delivered to one Thomas E. Bennett his certain check, dated November 15th, 1948, drawn on the Peoples National Bank of Chester, South Carolina, in the sum of Eight Hundred Dollars, payable to the order of said Thomas E. Bennett; that, on the following day, November 16th, 1948, Thomas E. Bennett endorsed this check in blank and delivered it to plaintiff, which thereupon paid Bennett, the payee, the sum of Eight Hundred Dollars in cash money; that, by reason of this transaction, plaintiff became a bona fide purchaser for value, a holder in due course, of this check; that thereafter, in due course, plaintiff had this check presented for payment to the Peoples National Bank of Chester, the drawee bank, but was notified by said drawee bank that payment of the check had been stopped by the drawer prior to its being presented for payment, with the result that plaintiff was not able to obtain payment of this check in the sum of Eight Hundred Dollars from the drawee bank; that plaintiff subsequently made numerous requests and demands of defendant for payment of the amount of this check, but that defendant refused to pay same; and that plaintiff is now entitled to judgment against defendant in the sum of Eight Hundred Dollars, the amount of the check, with interest thereon from November 16th, 1948, at the legal rate.
By his Answer, the defendant interposes three separate defenses to this action.
In his first defense, defendant first enters a general denial to everything not specifically admitted or affirmatively alleged; he then admits that plaintiff is a banking corporation, with its principal place of business in Fort Mill and that he is a resident of Chester County, that he signed, executed and delivered to Thomas E. Bennett a check in the sum of Eight Hundred Dollars, dated November 15th, 1948, drawn on The Peoples National Bank of Chester, Chester, S. C., payable to said Thomas E. Bennett, that defendant had been informed that Bennett cashed this check at the plaintiff bank and received money or other credit therefor 'which defendant did not deny), that defendant was informed and believed that this check was presented to the Peoples National Bank of Chester, which refused to pay the check pursuant to orders of defendant, and that plaintiff had demanded payment of the amount of this check of defendant, which demand was refused by defendant. In his first defense, defendant denies, on information and belief, that the check is a negotiable instrument, that plaintiff is a bona fide purchaser of same for value, a holder in due course; and further denies that he is indebted to plaintiff by reason of this check. This defense also alleges that there are certain allegation of the complaint concerning which defendant has no information, and as to which defendant demands strict proof, but it is not clear just what those allegations of the Complaint are.
In his second defense, defendant alleges that plaintiff was negligent in cashing his check for Bennett, the payee thereof, but that plaintiff should have accepted the check from Bennett for collection only, and paid him the amount thereof only after plaintiff had had it presented to the Peoples National Bank of Chester and it had been honored by said drawee bank; and that such loss as plaintiff had suffered is the result of its own negligence in cashing the check for the drawee, rather than taking it for collection only.
In his third defense, defendant alleges that he delivered this check to Thomas E. Bennett as the purchase price for a certain automobile sold by said Bennett to him; that Bennett gave defendant a bill of sale to said automobile, but that it developed that Bennett was not the owner thereof and could not give good title thereto, and that Bennett thus obtained this check from defendant by fraud and false representations; that upon learning of this fraud perpetrated upon him by Bennett, defendant notified the drawee, the Peoples National Bank of Chester, to stop payment of this check, which was done; that defendant is informed and believes that by reason of this fraud perpetrated upon him by Bennett, this check does not represent a binding obligation of defendant; that the check was not a negotiable instrument; that plaintiff should have known that the check was an item for collection and subject to stop-payment orders and, by taking same from Bennett, acquired no higher or greater rights thereunder than Bennett had and, since Bennett could not recover of defendant by reason of the fraud perpetrated by him, neither can plaintiff recover of defendant.
The notice of motion to strike and for judgment is in the usual form, and bases the motion upon the grounds that the Answer is sham, false, frivolous, intended only for purposes of delay, and constitutes no defense in this action. It is directed against the Answer as a whole.
Defendant first maintains that, inasmuch as this cause had been docketed for some time prior to the Notice of Motion on which it is now before me, the motion to strike comes too late, and cannot be made at this time. The Motion is directed against an Answer, however, and the general rule with reference to motions to strike pleadings, or portions of pleadings, does not apply to Answers. In Lenhardt b. French, 68 S.C. 297, 47 S.E. 382, it was held that a motion to strike from an answer did not come too late, even when made after six terms of court and two mistrials. See, also, Cohrs v. Fraser, 5 S.C. 351; Nichols v. Briggs, 18 S.C. 473.
Therefore, it must be held that plaintiff's motion to strike was not made at too late a date, and that it should be considered by the Court.
A case very similar in facts to the one now before me is Union Guano Co. v. Garrison, 130 S.C. 404, 126 S.E. 133. The action there was upon a promissory note executed by defendants as makers and payable to the plaintiff. At the hearing of a motion to strike out the answer as sham and frivolous, and for judgment for plaintiff, in open court, after reading the pleadings, motion papers, inspecting the original note sued upon, and hearing argument of counsel, His Honor, Judge Dennis, granted the motion and rendered judgment. Upon appeal therefrom to the Supreme Court, the general doctrine was stated, 126 S.E. 134: 'The motion to strike out as sham presented a question on fact to be determined by the court upon affidavits, or in such manner as the court may direct'; citing Tharin v. Seabrook, 6 S.C. 113; Germofert Co. v. Castles, 97 S.C. 389, 81 S.E. 665; Bank of Johnston v. Fripp, 101 S.C. 185, 85 S.E. 1070; Interstate Chemical Co. v. Farmington, 100 S.C. 196, 84 S.E. 710.
The instant case differs from that above cited in that here a check is the basis of the action, there it was a promissory note; here the action is brought by an indorsee, there it was brought by the original payee. However, the rules governing the determination of the questions at issue are practically identical in this case with those applicable in the Union Guano Company case, supra. Here, as there, the motion to strike presents a question to be determined by me in such manner as may appear proper; and, as heretofore stated, I had before me, when hearing the motion, the Complaint, the Answer, the Motion papers, and the check upon which the suit is based. In that respect, the controlling factors here appear to be practically identical with those in the Union Guano Company case, above...
To continue reading
Request your trial