Strait v. British & Am. Mortg. Co

• Citation: 77 S.C. 367,57 S.E. 1000
• Court: United States State Supreme Court of South Carolina
• Decision Date: 12 July 1907
• Parties: STRAIT v. BRITISH & AMERICAN MORTG. CO., Limited.

57 S.E. 1000
77 S.C. 367

STRAIT
v.
BRITISH & AMERICAN MORTG. CO., Limited.

Supreme Court of South Carolina.

July 12, 1907.

1. Appeal—Appealable Order.

An appeal does not lie from an order refusing to strike out part of the pleading.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 704.]

2. Judgment—Res Judicata.

A judgment in foreclosure bars a separate action for the penalty for collecting attorney's fees in such suit as a method of collecting usurious interest.

[57 S.E. 1101]

Appeal from Common Pleas Circuit Court of Lancaster County; Dantzler, Judge.

Action by T. J. Strait against the British & American Mortgage Company, Limited. Prom an order overruling a demurrer and refusing motion to strike out certain defenses, plaintiff appeals. Affirmed.

J. Harry Poster, for appellant.

R. E. Wylie, for respondent.

POPE, C. J. It appears from the record that on December 16, 1904, the defendant mortgage company loaned to the plaintiff herein. T. J. Strait, the sum of $8,500; plaintiff giving his five notes, payable at various times thereafter. The contract provided for 8 per cent, interest, 10 per cent, attorney's fees, and also that, should any one of the notes not be paid when it became due, then the defendant at its option might regard all the notes as due and bring suit for foreclosure. Plaintiff having failed to meet the first note, foreclosure proceedings were instituted by the defendant, and on October 11, 1906. judgment by default was entered against the plaintiff for $10,9tiS.S9. Thereafter, in December, 1906, plaintiff, alleging that the 10 per cent, attorney's fee charged was not used for such purpose, but was merely a method of charging usurious interest, brought this action under the usury laws of the state to recover the penalties therein provided. The defendant answered, setting up four separate defenses. The third defense was: (1) That the judgment had been-transferred to W. H. Clyburn, without recourse; and (2) defendant denies that it contracted for or collected any usurious interest. The fourth defense was that the matter was res judicata. On March 13, 1907, plaintiff moved, before Judge C. G. Dantzler, at Lancaster, to have these defenses stricken out as irrelevant and redundant, and also demurred to them. Judge Dantzler refused to strike them out and overruled the demurrer as to each.

1. The first question raised by the exceptions is that the circuit judge erred in refusing to strike out the defenses as irrelevant and...