Citizens' & Me. Bank v. Witcover

• Court: United States State Supreme Court of South Carolina
• Citation: 77 S.C. 441,58 S.E. 146
• Decision Date: 29 July 1907
• Parties: CITIZENS' & MAINE BANK. v. WITCOVER.

58 S.E. 146
(77 S.C. 441)

CITIZENS' & MAINE BANK.
v.
WITCOVER.

Supreme Court of South Carolina.

July 29, 1907.

Appeal—Appealable Order.

No appeal lies from an order refusing to strike out an answer as sham.

[Ed. Note.—For cases in point, see Cent. Diy vol. 2, Appeal and Error, § 704.]

[58 S.E. 147]

Appeal from Common Pleas Circuit Court of Marion County; Watts, Judge.

Action by the Citizens' & Maine Bank against one Witcover. From an order refusing to strike out the answer as sham, plaintiff appeals. Affirmed.

Montgomery & Lide, for appellant.

Jas.W. Johnson, for respondent

WOODS, J. This appeal is from an order refusing to strike out defendant's answer as sham and irrelevant. The complaint alleges the making by the defendant of two notes, for $180 and $500, dated April 21, 1906, payable to the order of J. G. Latimer, 60 days after date, the indorsement of the note by the plaintiff before maturity, the present ownership by the plaintiff, demand for payment, and failure to pay. Defendant answered as follows: "(1) He denies each and every allegation of the complaint not hereinafter admitted. (2) He admits that he executed the notes described in the complaint, but denies that they were given for any valuable or other consideration; but, on the contrary, he alleges that they were given solely for the accommodation of one J. G. Latimer, and were without consideration, which fact plaintiff well knew at the time it took said notes; that defendant is informed and believes that when said notes became due the said J. G. Latimer substituted his own note, with O. M. Latimer as indorser, for said notes in said bank, and said bank accepted same in lieu of this defendant's notes, thus releasing him from all liability to said bank on account of said notes. (3) He admits the allegations contained in paragraphs 1 and 4 of plaintiff's first cause of action, and the allegations contained in 1 and 4 of plaintiff's second cause of action."

The motion to strike out was made on the pleadings; the affidavits of W. E. Vest, cashier of the plaintiff bank, denying the substitution of Latimer's notes for the notes in suit and asserting the bank's ownership of the notes; the affidavit of W. J. Montgomery, Esq., setting forth separate admissions of liability by the defendant after the notes had come into his hands; and a number of letters of the defendant to the bank, written after the maturity of the notes, asking for indulgence, and making no allusion to any defense set up in...