A. E. Staley Mfg. Co. v. Threatt, 18137

• Decision Date: 10 December 1963
• Docket Number: No. 18137,18137
• Court: South Carolina Supreme Court
• Parties: A. E. STALEY MANUFACTURING CO., Respondent, v. W. G. THREATT, O. J. Threatt, Jr. and Agnes Threatt, Appellants.

Page 824

133 S.E.2d 824

243 S.C. 309

A. E. STALEY MANUFACTURING CO., Respondent, v. W. G. THREATT, O. J. Threatt, Jr. and Agnes Threatt, Appellants.

No. 18137.

Supreme Court of South Carolina.

Dec. 10, 1963.

Leppard & Leppard, Chesterfield, for appellants.

H. F. Bell, Chesterfield, Levi & Wittenberg, Sumter, for respondent.

TAYLOR, Chief Justice.

This is an appeal from the Order of the Honorable J. A. Spruill, Jr., refusing Appellants' motion to strike certain allegations of the complaint and granting Respondent's motion for a general Order of reference.

The complaint alleges two causes of action for the foreclosure of two chattel mortgages between the parties. The first cause of action alleges Respondent agreed to sell sufficient turkey feed, on credit, to feed a flock of approximately 889 turkey breeders, and Appellants agreed to purchase the same and to execute and deliver a chattel mortgage on all turkey breeders 'hatched or acquired in the year 1958, together with all increases or additions thereto, whether by reproduction, purchase, acquisition or otherwise, and all eggs produced by said turkey breeders' as security for the indebtedness incurred thereby. It was further alleged that Appellants paid only a portion of the indebtedness and are now in default; and Respondent desires to foreclose the chattel mortgage, bar the equity of redemption, sell the mortgaged chattels and apply the proceeds thereof to and the payment of the indebtedness due. Respondent does not waive deficiency judgment. The second cause of action is substantially the same in regard to a flock of approximately 4200 turkey poults.

Appellants answered in due time and admitted execution and recordation of the alleged chattel mortgages and that Respondent was the owner and holder thereof. The allegations of indebtedness in both causes of action were denied and no affirmative defense or other matters were alleged or pleaded in the answer.

Appellants moved to strike all allegations pertaining to the alleged chattel mortgages from both causes of action 'upon the grounds that all of the chattels secured by the alleged chattel mortgages have been sold under the supervision and direction and by consent of the plaintiff and that all funds derived from the sale thereof have been paid over to the plaintiff.'

A motion to strike is addressed to the sound discretion of the Circuit Judge, Mikell v. McCreery-Pressley Co., 105 S.C. 25, 89 S.E. 467; Staton v. Bell, 170 S.C. 395, 170 S.E. 666; Ellen, et al. v. King, et al., 227 S.C. 481, 88 S.E.2d 598; J. M. S., Inc., v. Theo, 241 S.C. 394, 128 S.E.2d 697; and his refusal to grant a motion to...