National Bank of South Carolina v. Smotts, 0040

• Decision Date: 09 January 1984
• Docket Number: No. 0040,0040
• Citation: 280 S.C. 126,311 S.E.2d 98
• Parties: The NATIONAL BANK OF SOUTH CAROLINA, Plaintiff-Respondent, v. Charles E. SMOTTS, Robert E. Lee Chrysler-Plymouth, Ivan Huntley, South Carolina National Bank, Gibbes Volkswagen, Inc., & Stanley Ehlers, Defendants, of whom Charles E. Smotts is the Appellant, v. TRANSOUTH FINANCIAL CORPORATION, Defendant and Third Party Plaintiff, v. The NATIONAL BANK OF SOUTH CAROLINA, Charles E. Smotts, Robert E. Lee Chrysler-Plymouth, Ivan Huntley, South Carolina National Bank, Gibbes Volkswagen, Inc., & Stanley Ehlers, Third Party Defendants.
• Court: South Carolina Court of Appeals

Page 98

311 S.E.2d 98

280 S.C. 126

The NATIONAL BANK OF SOUTH CAROLINA, Plaintiff-Respondent, v. Charles E. SMOTTS, Robert E. Lee Chrysler-Plymouth, Ivan

Huntley, South Carolina National Bank, Gibbes

Volkswagen, Inc., & Stanley Ehlers,

Defendants, of whom Charles E.

Smotts is the Appellant, v. TRANSOUTH FINANCIAL CORPORATION, Defendant and Third Party Plaintiff, v. The NATIONAL BANK OF SOUTH CAROLINA, Charles E. Smotts, Robert E. Lee Chrysler-Plymouth, Ivan Huntley,

South Carolina National Bank, Gibbes

Volkswagen, Inc., & Stanley

Ehlers, Third Party

Defendants.

No. 0040.

Court of Appeals of South Carolina.

Jan. 9, 1984.

Walter G. Newman of Atkinson, Davis & Newman, Sumter, for appellant.

William E. DuRant, Jr., of Schwartz & DuRant, Sumter, for plaintiff-respondent.

GARDNER, Judge.

This is a foreclosure action against appellant Smotts. Judge Ernest A. Finney issued a foreclosure decree not providing for deficiency judgment; subsequently, Judge Dan F. Laney, Jr., in further proceedings, issued his order granting deficiency judgment to respondent National Bank of South Carolina. From this order, Smotts appeals. We affirm.

Respondent bank, by its original complaint, sought foreclosure of a third mortgage on real estate. The complaint was amended, with the consent of Smotts, to include a prayer for deficiency judgment. Smotts defaulted. Thereafter other parties joined the action to protect their respective security interests in the property. On motion of the first mortgagee, Judge Finney, by order of January 16, 1980, decreed that the first and second mortgages of named defendants be foreclosed, that the property be sold and the proceeds of the sale be applied, after costs, to the various lien holders according to priority. The order recited that deficiency judgments had been waived; from the context, this referred only to the claims of the first and second mortgagees. However, the right of deficiency judgment of respondent bank was not adjudicated in Judge Finney's foreclosure decree. The property was sold, but the proceeds were exhausted by debts owed the first and second mortgage lien holders. Subsequently, in further proceedings, Judge Laney entered judgment against Smotts for the amount he owed respondent bank.

Appellant poses one question by this appeal. Was the order of Judge Laney in error as being a review and modification of an earlier order of another circuit court judge?

While it is well settled that one circuit judge cannot set...