Etiwan Fertilizer Co v. Johns, No. 15490.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtFISHBURNE, Justice
Citation24 S.E.2d 74
Decision Date18 January 1943
Docket NumberNo. 15490.
PartiesETIWAN FERTILIZER CO. v. JOHNS et al.

24 S.E.2d 74

ETIWAN FERTILIZER CO.
v.
JOHNS et al.

No. 15490.

Supreme Court of South Carolina.

Jan. 18, 1943.


[24 S.E.2d 74]

Appeal from Common Pleas Circuit Court, of Allendale County; Wm. H. Grim-ball, Judge.

Action by Etiwan Fertilizer Company against W. R. Johns and another on a promissory note, wherein defendants filed an answer and counterclaim. From an order striking out as sham and frivolous their answer and counterclaim and awarding judgment to plaintiff on the pleadings, defendants appeal.

Reversed and remanded for trial.

Searson & Searson, of Allendale, and T. M. Boulware, of Barnwell, for appellants.

Legge & Gibbs, of Charleston, H. L. O'Bannon, of Barnwell, and J. Wesley Crum, of Denmark, for respondent.

[24 S.E.2d 75]

FISHBURNE, Justice.

Appellants seek the reversal of an order of the Circuit Court striking out as sham and frivolous their answer and counterclaim, and awarding judgment to the plaintiff on the pleadings.

This action was commenced on June 10, 1938, by Etiwan Fertilizer Company against the defendants, W. R. Johns, as principal, and Elizabeth O. Johns, endorser, on a promissory note for the original amount of $10,899.20, plus interest and attorneys' fees, less certain admitted payments. The maximum amount now involved is $2,450.18. The cause was held in abeyance by agreement in writing, under which several extensions of time were granted the defendants to plead--until March 15, 1941. In the interim, the defendants made several substantial payments upon the indebtedness. The following provision is incorporated in the written agreement referred to: "And it is specifically understood and agreed between the respective parties to this agreement, that, by the execution thereof, the said W. R. Johns does not waive any defenses which he may, in any way, have to the said note."

Before the expiration of the time granted within which to plead, answer or demur, the defendants filed an answer and counterclaim which under the order of the Court was later amended, so that we here deal with the amended answer and counterclaim.

Within due time after the service of this pleading, the plaintiff moved for an order striking out the answer and counterclaim, and for judgment, "upon the ground that said answer and counterclaim is sham and frivolous, and stated no defense." The motion came on to be heard before the Circuit Judge upon the pleadings in the case, the affidavits and certain exhibits offered by the plaintiff, and counter affidavits offered by the defendants. The Court, without specifically holding that the amended answer and counterclaim was sham and frivolous, concluded that, "plaintiff is entitled to the order moved for;" awarded judgment as prayed for in the complaint, and directed that the amended answer and counterclaim be stricken out.

The first ground of appeal to be noticed is: May any counterclaim be stricken as sham? We answer this question in the affirmative.

Section 470, 1942 Code, provides that "sham and irrelevant answers and defenses may be stricken out on motion." Section 457 provides that "The only pleading on the part of the defendant is either a demurrer or an answer;" and Section 467, that "The answer of the defendant must contain: (1) * * * (2) A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition."

It explicitly appears from the foregoing Sections of the Code that a counterclaim must be incorporated in an answer. It would make no difference if a portion of this answer be treated as a counterclaim, as the Code provision is directed not only against sham and irrelevant defenses, but to answers as well, and the counterclaim must be considered as a part of the answer. Any other construction would permit a defendant to evade the consequences of the statute and delay judgment, by interposing sham counterclaims instead of sham defenses. The practice of striking out counterclaims on the ground of being sham, irrelevant, and frivolous, has been consistently followed in this State. Swift & Co. v. Cook, 197 S.C. 454, 15 S.E.2d 773; Oswald v. Hug-gins, 171 S.C. 419, 172 S.E. 430; Germo-fert Mfg. Co. v. Castles, 97 S.C. 389, 81 S.E. 665; 49 C.J., Section 988, Page 699; 49 C.J, Section 993, Page 702.

Appellants contend that this answer and counterclaim should not have been stricken out as sham. A determination of this question requires an examination of the pleading.

The answer and the counterclaim are substantially identical in language. It is alleged that prior to the execution of the note set out in the complaint, the defendant W. R. Johns and the plaintiff entered into an agreement, partly oral and partly in writing, the written portion consisting of a contract known as a fertilizer agency contract. That under the terms of the oral contract and the written contract, the defendant Johns undertook the sale of fertilizers to be furnished...

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11 practice notes
  • Baker v. Allen, No. 16538
    • United States
    • United States State Supreme Court of South Carolina
    • August 28, 1951
    ...pleaded in good faith; being a mere pretense, set up in bad faith and without color of fact.' Etiwan Fertilizer Co. v. Johns, 202 S.C. 29, 24 S.E.2d 74, 76. It was there held that the power to strike a pleading as sham 'will be very sparingly exercised, and only where the pleading is manife......
  • Bell v. Forrest Paschal Machinery Co. and Engineering Associates, Inc., No. 21559
    • United States
    • United States State Supreme Court of South Carolina
    • September 14, 1981
    ...granted. Germofert Mfg. Company v. Castles, 97 S.C. 389, 393, 81 S.E. 665; Etiwan [277 S.C. 21] Fertilizer Co. v. Johns, 202 S.C. 29, 35, 24 S.E.2d 74. Upon review of the record and briefs of counsel, however, we conclude that in each instance the challenged defense was so manifestly false ......
  • Town of Bennettsville v. Bledsoe, No. 16927
    • United States
    • United States State Supreme Court of South Carolina
    • November 11, 1954
    ...may be stricken out on motion * * *.' Sec. 10-654, Code of 1952. But it is rarely done. Etiwan Fertilizer Co. v. Johns, 202 S.C. 29, 24 S.E.2d 74; Baker v. Allen, 220 S.C. 141, 66 S.E.2d 618. However, in this instance it was proper because the alleged first defense was patently sham. In vie......
  • Swift & Co. v. Griggs, No. 17561
    • United States
    • United States State Supreme Court of South Carolina
    • August 4, 1959
    ...S.C. 47, 151 S.E. 920; Columbia National Bank v. People's Bank, 162 S.C. 324, 160 S.E. 728; Etiwan Fertilizer Co. v. Johns, 202 S.C. 29, 24 S.E.2d 74; Gunter, Inc. v. Hindman, 175 S.C. 436, 179 S.E. Appellants in their answer do not allege fraud, accident, or mistake but seek to show an ent......
  • Request a trial to view additional results
11 cases
  • Baker v. Allen, No. 16538
    • United States
    • United States State Supreme Court of South Carolina
    • August 28, 1951
    ...pleaded in good faith; being a mere pretense, set up in bad faith and without color of fact.' Etiwan Fertilizer Co. v. Johns, 202 S.C. 29, 24 S.E.2d 74, 76. It was there held that the power to strike a pleading as sham 'will be very sparingly exercised, and only where the pleading is manife......
  • Bell v. Forrest Paschal Machinery Co. and Engineering Associates, Inc., No. 21559
    • United States
    • United States State Supreme Court of South Carolina
    • September 14, 1981
    ...granted. Germofert Mfg. Company v. Castles, 97 S.C. 389, 393, 81 S.E. 665; Etiwan [277 S.C. 21] Fertilizer Co. v. Johns, 202 S.C. 29, 35, 24 S.E.2d 74. Upon review of the record and briefs of counsel, however, we conclude that in each instance the challenged defense was so manifestly false ......
  • Town of Bennettsville v. Bledsoe, No. 16927
    • United States
    • United States State Supreme Court of South Carolina
    • November 11, 1954
    ...may be stricken out on motion * * *.' Sec. 10-654, Code of 1952. But it is rarely done. Etiwan Fertilizer Co. v. Johns, 202 S.C. 29, 24 S.E.2d 74; Baker v. Allen, 220 S.C. 141, 66 S.E.2d 618. However, in this instance it was proper because the alleged first defense was patently sham. In vie......
  • Swift & Co. v. Griggs, No. 17561
    • United States
    • United States State Supreme Court of South Carolina
    • August 4, 1959
    ...S.C. 47, 151 S.E. 920; Columbia National Bank v. People's Bank, 162 S.C. 324, 160 S.E. 728; Etiwan Fertilizer Co. v. Johns, 202 S.C. 29, 24 S.E.2d 74; Gunter, Inc. v. Hindman, 175 S.C. 436, 179 S.E. Appellants in their answer do not allege fraud, accident, or mistake but seek to show an ent......
  • Request a trial to view additional results

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