Southern Cotton Oil Co. v. Bryant

September 21, 1926.

The opinion of the Court was delivered by Action on note. Complaint in usual form and verified. The answer contains three defenses: (1) A general denial; (2) material alteration of note sued on; (3) failure of consideration.

Plaintiff respondent gave notice of motion to strike out answer on ground that same was sham and frivolous, and, failing in that, to strike out the third defense on same ground. Also gave notice of demurrer as to the first and second defenses.

Upon hearing the motion to strike out the answer, his honor, the Special Judge, granted motion, and, upon hearing the demurrer, he sustained it. Defendant appeals.

The first defense of the answer is as follows: "(1) That defendant denies each and every the allegations in said complaint contained." The answer is verified.

Without going into any extended discussion of the law it is sufficient to say that an answer denying the allegations of the complaint presents a question of fact for the jury and cannot be stricken out as sham. An answer may contain several distinct defenses and even contradictory defenses. In Standard Co. v. Henry, 43 S.C. 25;20 S.E., 793, the Supreme Court, speaking through the great Chief Justice McIver, says:

"The rule, as we understand it, is that an answer which denies any material allegation in the complaint cannot be stricken out, on motion, as either sham or frivolous."

Here the complaint alleges the execution and delivery of the note, sets out the note, the amount alleged to be due thereon, etc. The answer by the first defense denies all the allegations of the complaint.

His Honor sustained the motion and passed an order striking out the answer. We think he erred in so doing. When this motion to strike out was granted, there was no part of the answer left, for the order is as follows, in part:

"This matter comes before me on a motion to strike out the answer on the ground that the same is sham and frivolous. * * * Counsel having been fully heard, it is ordered, adjudged, and decreed, that the motion to strike out the answer be, and the same is hereby, granted."

Of course when this motion was granted, there was nothing of the answer left; yet, according to the record, the demurrer as sustained in the following language:

"It is ordered, adjudged, and decreed that the demurrer to the first defense of the answer of the defendant as set forth in paragraphs 1 and 2 of the said answer be, and the same is hereby, sustained."

As state above, the first defense set out in paragraph 1 of the answer is a general denial. This defense could not be stricken out as sham or frivolous, nor was it subject to demurrer. And when the motion to strike out the answer was granted, there was nothing left of the answer and consequently nothing to demur to.

We have not deemed it necessary to consider any of the other exceptions. It was error to strike out paragraph 1 of the complaint which was a general denial; as well as other defenses.

It is ordered that the judgment of the lower Court be reversed, and that the case be remanded for a new trial on the pleadings.

MESSRS. JUSTICES WATTS, BLEASE, and STABLER concur.

MR. CHIEF JUSTICE GARY did not participate.