Nettles v. Nettles

• Decision Date: 11 January 1927
• Docket Number: 12139.
• Citation: 136 S.E. 297,138 S.C. 318
• Parties: NETTLES v. NETTLES.
• Court: South Carolina Supreme Court

136 S.E. 297

138 S.C. 318

NETTLES v. NETTLES.

No. 12139.

Supreme Court of South Carolina

January 11, 1927

Appeal from Common Pleas Circuit Court of Greenville County; T. J Mauldin and M. M. Mann, Judges.

Action by Mary Dillard Nettles against Stephen Nettles. Judgment for defendant, and plaintiff appeals. Affirmed.

E. H Callaway, of Augusta, Ga., and Martin & Blythe, of Greenville, for appellant.

Bonham Price & Poag, of Greenville, and Jos. L. Nettles, of Columbia, for respondent.

BLEASE J.

The plaintiff, Mrs. Mary Dillard Nettles, sued her husband, the defendant, Stephen Nettles, Esq., in the court of common pleas for Greenville county, and alleged in her complaint the following matters, briefly stated:

(1) That on January 12, 1920, she turned over to the defendant certain corporate stocks under the following written instrument:

"Stephen Nettles is hereby authorized to pledge the stock below listed belonging to me to any bank for any amount he may desire to borrow thereon, and to dispose of the proceeds of the pledge in his discretion."

(2) That the stocks delivered to the defendant were assigned by the plaintiff in blank. That at the same time the defendant had her to execute with him a joint note to a bank in Greenville for the principal sum of $7,000.

(3) That soon thereafter the defendant, by the use of the said note, with the stocks as security, obtained a loan from the bank, and appropriated the entire proceeds of the said loan to his own uses. That, at the time the plaintiff signed the power of attorney, transferred the stock certificates, and made the note, the defendant "assured plaintiff that he would see that she should never suffer any loss from said transaction, and that he would be entirely responsible therefor."

(4) That the note was renewed from time to time, and by payments made by the defendant thereon the indebtedness was reduced to $5,250; then the defendant failed and refused to pay the amount thereof or to renew the same, thereby forcing plaintiff to pay the said debt in order to avoid the sacrifice of her stock, and that the defendant was liable to the plaintiff for the amount she had to pay, with interest thereon.

In his answer, the defendant admitted the execution of the instrument referred to in the complaint and the transfer of the stocks by the plaintiff. He admitted the payments made by him on the note and his refusal to make further payment. For a further defense, he alleged that the transaction, out of which the suit grew, was a speculation made by the defendant for the benefit of the plaintiff at her request; that he was not liable to the plaintiff in any sum; that the plaintiff never regarded the transaction as an obligation of the defendant until the year 1924, "after she had without just cause abandoned him and returned to her mother's home"; that he was willing to pay the note as his wife's debt, and had made payments thereon as an act of kindness to her, but that he had refused to make further payments due to the conduct of his wife, the plaintiff, in assailing his integrity.

The plaintiff, by proper motion, heard before his honor, Circuit Judge T. J. Mauldin, endeavored to have stricken from the answer of the defendant certain allegations contained therein as follows:

"That plaintiff never regarded it otherwise and never suggested that defendant was liable to her thereon, until early in the year of 1924, after she had without just cause abandoned him and returned to her mother's home."

"That previously she had repeatedly expressed gratitude to defendant for paying her losses on the transaction and protecting her collateral when he was not financially able to protect his own property from forced sale."

"That, after abandoning him, she began to assert for the first time that the note herein sued on was his debt and not hers, and began a campaign of attack on his integrity."

"That defendant was willing enough to pay said note as his wife's debt and as an act of kindness to her, although he had already lost $12,000 on the transaction, but he was not willing to pay her note as his own debt when his wife was assailing his integrity in the most bitter and unmeasured terms; and for these reasons he has refused and still refuses to pay said note."

The motion to strike out the allegations referred to from the answer of the defendant was refused by Judge Mauldin. The plaintiff gave notice of intention to appeal from that order, but that appeal was never perfected; the plaintiff's attorneys coming to the conclusion that appeal would not lie at that time. The cause was tried before Hon. M. M. Mann, circuit judge, and a jury.

At the trial, the plaintiff objected to testimony going to establish the allegations in the answer of the defendant, which she had moved to strike out.

The cause resulted in a verdict in favor of the defendant. The plaintiff has appealed to this court from the order of Judge Mauldin, refusing to strike out certain portions of the answer, and from the result of the trial before Judge Mann, and from his order refusing a new trial. She has also appealed from the order of Judge Mann settling the case for appeal.

Several of the exceptions impute error in the action of Judge Mauldin in refusing to grant plaintiff's motion to strike out the allegations of the answer hereinbefore set forth. Under the authorities in this state, refusal to strike out allegations in an answer is not appealable. Smith v. Heyward, 110 S.C. 148, 96 S.E. 289; Dawkins v. Street Railway Co., 82 S.C. 166, 63 S.E. 746; McCandless v. Mobley, 81 S.C. 303, 62 S.E. 260; Harbert v. Railway Co., 74 S.C. 13, 53 S.E. 1001. The exceptions of the plaintiff in this regard must therefore be dismissed. The questions raised by these exceptions were properly reserved by the plaintiff, however, in objections made by her to the testimony of the defendant, and will be later further considered.

Error is alleged because the presiding judge allowed the defendant to introduce a letter written to Mrs. Margaret Dorsey by the plaintiff. The record is not entirely clear that the letter was introduced. Since the respondent does not question the fact of the introduction, however, we assume that it was introduced. This letter was identified by the plaintiff while she was a witness, and she admitted that she had written it. One of the contentions of the defendant was that the plaintiff had no just claim against him, and that she had brought the suit out of a vindictive spirit, and that her suit was founded in malice. In her testimony, the plaintiff denied being influenced by the motives attributed to her by the defendant. The letter to Mrs. Dorsey contained statements regarding the defendant and his conduct, and was couched in such language as to give some evidence of the fact that the contention of the defendant was correct. Under the peculiar circumstances of the case, we think the circuit judge properly admitted the letter in evidence.

The defendant was allowed to introduce in evidence, over objection of the plaintiff, a letter he had written to the plaintiff on March 10, 1924, before the commencement of the suit, but after plaintiff, through attorneys, had made demand that the defendant pay the amount plaintiff alleged she had lost by the conduct of the defendant. The plaintiff contends that the letter should have been excluded on the ground that it was irrelevant and was a self-serving declaration by the defendant, made after it was apparent that there would be litigation, and that it was argumentative. When this letter was offered, there had already gone into the record of the case a letter from the plaintiff to the defendant dated March 14, 1924, and it appears that her letter was a reply to the letter of the defendant of March 10th. In order that the letter of the plaintiff could be fully understood, it was proper...