Huyler v. Kohn

• Decision Date: 01 April 1930
• Docket Number: 12877.
• Parties: HUYLER v. KOHN.
• Court: South Carolina Supreme Court

153 S.E. 460

156 S.C. 437

HUYLER v. KOHN.

No. 12877.

Supreme Court of South Carolina

April 1, 1930

Appeal from Common Pleas Circuit Court of Richland County; M. S Whaley, Judge.

Action by A. V. Huyler against August Kohn. Judgment for defendant, and plaintiff appeals.

Appeal dismissed.

Thomas & Lumpkin, of Columbia, for appellant.

Melton & Belser, of Columbia, for respondent.

STABLER J.

This is an action on two promissory notes, in the sum of $875 each executed by the defendant and made payable to the order of A L. Silknitter and F. M. Seymour, and alleged in the complaint to have been assigned and delivered before maturity for valuable consideration to the plaintiff Huyler. The complaint is in the usual form. All transactions in relation to the notes were made in the state of Florida.

The defendant, answering, admitted the execution of the notes but denied all other allegations of the complaint. He further alleged that he signed the notes as trustee for a corporation then being organized, and added the word "trustee" after his signature with the understanding and agreement with the payees thereof that the notes should be regarded as the obligation of the corporation and without personal liability on his part. He further alleged that the plaintiff Huyler was put on notice of the circumstances and conditions under which the notes had been signed by the defendant as trustee; that he knew there was no personal liability on the part of the defendant, but that the notes were solely the obligation of the corporation; and that they have been so treated by the plaintiff by correspondence and otherwise from the time of their execution down to date.

Plaintiff moved to strike out the answer on the ground that it was frivolous and irresponsive to the issues, and asked that judgment be awarded on the pleadings. He also demurred to the answer on the ground that it did not state facts sufficient to constitute a defense. The matter was heard by Hon. M. S Whaley, judge of the Richland county court, who made an order dated March 18, 1929, striking out the third defense but refusing to strike out the first and second. Both parties to the action reserved their right to appeal from this order. In May, 1929, the case was tried before Judge Whaley and a jury. Testimony was offered and received on behalf of the plaintiff and the defendant in support of their respective allegations. The jury found a verdict for the defendant, and judgment was entered thereon.

This appeal is only from the order of the county judge refusing to grant plaintiff's motion and sustain his demurrer; and, in view of the admitted fact that no appeal is taken from the final judgment, the defendant makes the point that the plaintiff cannot now prosecute his appeal from the preliminary order.

This contention is well taken. In the case of Caldwell v. McCaw et al., 141 S.C. 86, 139 S.E. 174, 175, the Planters' Bank, one of the defendants, demurred to the complaint and moved to strike out a part of the answer of one of its codefendants. The demurrer was overruled and the motion to strike out denied. Thereafter, the case was tried and a verdict for the plaintiff resulted. The defendant bank appealed from the orders overruling the demurrer and refusing to strike out, but no appeal was taken from the final judgment. On the hearing of the appeal, this court, although it considered the questions presented, said: "We have passed upon the questions raised by the exceptions, but we may add that so far as this appeal is concerned these questions appear to be entirely academic. After the passing of the orders from which the appeal is taken, the case went to trial, and judgment was rendered for the plaintiff. This was a final judgment, and no appeal was made therefrom, and so there is nothing upon which a decision of the points involved, even if favorable to the appellant, could operate to change the status created by the final judgment." This view is supported by the decisions of other jurisdictions.

In the case of Drake v. Scheunemann, 103 Wis. 458, 79 N.W. 749, we find (quoting syllabus): "The right of appeal from an intermediate order ceases on the entry of judgment; it is thereafter subject to review on appeal from the judgment."

In Bates v. Holbrook, 89 A.D. 548, 85 N.Y.S. 673, 675, the court held: "After final judgment, however, the interlocutory judgment or intermediate order can only be reviewed on an appeal from the final judgment. The interlocutory judgment and the interlocutory orders upon which that final judgment is based are all merged in the final judgment, and no right to review an interlocutory judgment or intermediate order upon which the final judgment was based survives the entry of the final judgment, except so far as a review of the interlocutory judgment or intermediate order is allowed on the appeal from the final judgment."

In Twitchell v. Risley, 56 Or. 226, 107 P. 459, 460, it was held: ...