Mccandless v. Mobley

• Citation: 81 S. C. 303,62 S.E. 260
• Parties: McCANDLESS. v. MOBLEY et al.
• Decision Date: 11 September 1908
• Court: South Carolina Supreme Court

62 S.E. 260

81 S. C. 303

McCANDLESS.

v.MOBLEY et al.

Supreme Court of South Carolina.

Sept. 11, 1908.

1. Appeal and Error — Review — Harmless Error—Refusing to Strike Out Pleadings.

An order refusing a motion to strike out portions of an answer as frivolous, irrelevant, and redundant is not reversible error, though the matter might well have been stricken out, since such an order is not appealable.

2. Witnesses — Competency — Testimony Concerning Transaction with Decedent.

In an action by an executor on two notes given his decedent, where the issue made by the pleadings was whether defendant received full new consideration when he gave the second note, or whether he gave it in payment of the first note and $25 in cash, defendant testified in answer to a question as to the form in which he received money from decedent when the secondnote was given: "Well, it was greenbacks. That is what I called it, but I think it was two $10 bills"—held, that the testimony was as to a transaction between defendant and decedent, and was incompetent.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 50, Witnesses, § 681.]

Appeal from Common Pleas Circuit Court of Chester County; Chas. G. Dantzler, Judge.

Action by John McCandless, executor of Hamilton McCandless, against D. M. Mobley and another on two notes. From a judgment for plaintiff on one note only, he appeals. Reversed and remanded for a new trial.

Henry & McLure, for appellant.

J. H. Marion, for respondents.

WOODS, J. This action was brought on two promissory notes given by the defendants to Hamilton McCandless, plaintiff's testator, one dated January 22, 1900, due December 1, 1900, for $250 and interest from date at the rate of 7 per cent, payable annually until paid in full, and the other dated February 18, 1901, due two years after date for $176, with like provision for interest. On the first note the complaint alleged the only payment was $100 on October 26, 1900. There was no dispute as to the payments on the second note.

The defendants alleged in their answer that Hamilton McCandless, the payee of the notes, had remitted the interest on the first note, and that the second note was a renewal of the first, together with an additional loan of $25, and $1 paid to Mr. McLure for writing the note; the amount being made up in this way:

                ----------------------------------
                |First note                 |$250|
                |---------------------------|----|
                |Credit                     |100 |
                |---------------------------|----|
                |                           |150 |
                |---------------------------|----|
                |Additional                 |25  |
                |---------------------------|----|
                |Paid Atty. for drawing note|1   |
                |---------------------------|----|
                |                           |$176|
                ----------------------------------
                

A motion was made to strike out certain portions of the answer as frivolous, irrelevant, and redundant. We think the words "solemnly swears" might well have been stricken out as redundant, for pleading should present the issues in a plain way, and every verified complaint is presumed to be solemnly sworn to. The other allegations referred to in the motion also might have been stricken out with propriety as incumbering the answer with evidentiary matter. But there was no reversible error in refusing the motion, for...