Smart v. Charleston Mobile Homes, Inc., 20544
| Decision Date | 17 November 1977 |
| Docket Number | No. 20544,20544 |
| Citation | 239 S.E.2d 78,269 S.C. 588 |
| Court | South Carolina Supreme Court |
| Parties | William J. SMART, Respondent, v. CHARLESTON MOBILE HOMES, INCORPORATED and Statler Homes Manufacturing Company, Incorporated a/k/a Guerdon Industries, Inc. of which Statler Homes Manufacturing Company Incorporated a/k/a Guerdon Industries, Inc. is Appellant. |
Young, Clement & Rivers, Charleston, for appellant.
Benjamin Goldberg, Charleston, for defendant Charleston Mobile Homes, inc.
Ackerman, Woodard & Campbell, Walterboro, for respondent.
This is an appeal from an order sustaining a demurrer to a counterclaim upon the ground that the counterclaim may not be properly interposed in this action.
Plaintiff-respondent originally brought this action against the defendant, Charleston Mobile Homes, Inc., as the retailer, and defendant-appellant, Statler Homes Manufacturing Company, Inc., as the manufacturer, to recover damages sustained from an alleged breach of contract, breach of warranty, and misrepresentation in the sale of a mobile home to respondent. After answers were filed, Statler negotiated a settlement with respondent on the basis of a covenant not to sue. Under the settlement respondent agreed "to indemnify and hold harmless" Statler "for any amounts which may be recovered against" Statler "as a result of injuries or damages received by me (respondent)." Although respondent agreed, after the covenant not to sue, to eliminate Statler as a party defendant and served an amended complaint accordingly, as the result of subsequent motions by Charleston, respondent was required to again amend his complaint to include Statler as a party defendant so that Charleston could file a cross-complaint against Statler. Pursuant to this order of the court, respondent thereafter served an amended complaint, in which he named Statler as a party but sought recovery only against Charleston.
Thereafter Charleston answered the complaint and filed a cross-complaint against Statler. Statler then answered the cross-complaint of Charleston and filed a counterclaim against respondent alleging the covenant not to sue as a defense and seeking indemnification from respondent should respondent recover against Charleston and Charleston recover over against Statler on its cross- action. This counterclaim was based on the indemnification and "hold harmless" clause in the covenant not to sue, referred to hereinabove.
After the filing of the counterclaim, respondent filed a reply thereto and at the same time demurred on the grounds that the cause of action alleged in the counterclaim did not accrue to Statler at the time of the commencement of this action and did not arise out of the contract set forth in respondent's complaint. No certificate of counsel was affixed to the demurrer, as required by Circuit Court Rule 18, stating that the demurrer was meritorious and not merely intended for delay.
The lower court sustained the demurrer and dismissed the counterclaim without prejudice, from which Statler has appealed.
The record contains the statement that the trial judge had no recollection of any question being raised before him concerning the concurrent serving and filing of the reply and demurrer to the counterclaim; nor was any objection raised in the lower court that the demurrer lacked the certificate of merit by counsel.
The exceptions of appellant, Statler, charge that the trial judge erred in sustaining the demurrer to the counterclaim because (1) no certificate of merit accompanied the demurrer as required by Circuit Court Rule 18; (2) the concurrent filing of a reply and demurrer to the counterclaim amounted to a waiver of the right to demur; (3) the counterclaim stated a cause of action connected with the subject of respondent's action as permitted by Section 15-15-30 of the 1976 Code of Laws; and (4) the demurrer was not based upon any ground recognized as a ground for demurrer by Section 15-13-320 of the 1976 Code of Laws.
The first and second grounds of appeal were not raised in the lower court and are therefore waived. They cannot be raised for the first time on appeal.
The remaining objections concern the merits of the demurrer.
Appellant's (Statler's) reliance upon Code Section 15-13-320, as governing the...
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