Manufacturers Finance Co. v. Boyd

The opinion of the Court was delivered by Mr. Justice Marion. Action in claim and delivery for the possession of two motor trucks, which the plaintiff claimed under a title retention contract or chattel mortgage. The defendant B. H. Boyd answered denying certain allegations of the complaint and setting up as a defense the facts alleged in Paragraphs 4, 5, 6, 7 and 8 of his answer to each of the two separate *342 causes of action stated in the complaint. Let these paragraphs of the answer be set out by the reporter in the preliminary statement, of the case. The plaintiff moved for an order striking out the answer of the defendant B. H. Boyd on the ground that said answer was frivolous and constituted no legal defense to plaintiff’s causes of action. Upon hearing this motion, the Circuit Judge ordered that Paragraphs‘4, 5, 6, 7 and' 8 of the defendants’ answer to each of the causes of action stated in the complaint be stricken out. From that order the defendant B. H. Boyd appeals. The motion in this case was under Section 527, Vol. 1, Code of 1922, for a judgment on the answer as frivolous. As was stated by this Court in Grayson v. Harris, 37 S. C., 606; 16 S. E., 154: “In such case the rule seems to be settled that to be adjudged frivolous the whole answer must be clearfy so. Tf argument is necessary to establish that character, the Court will not dispose of it in the summary way.” Boylston v. Crews, 2 S. C., 427. Tharin v. Seabrook, 6 S. C., 113. Peacock v. Williams (C. C.), 110 Fed., 915. The Circuit Judge did not pronounce the answer frivolous, but made an order striking out the allegations above referred to. The relief sought was under Section 527; the relief granted was apparently under Section 421, Code Civ. Procedure 1922. Upon a notice of motion for judgment on the ground that the answer is frivolous, the defendant might well be unprepared to’ resist a motion directed to striking out irrelevant and redundant matter. We do not think a motion to strike the whole answer as frivolous could, without notice to defendant, properly be converted into a motion to strike out specific portions of same as irrelevant and redundant. We are therefore of the opinion that appellant’s point directed to that contention should be sustained. *343 But even in the view that upon this motion the Circuit Judge was entitled to consider the question as to whether certain portions of the answer were irrelevant and redundant, we are not satisfied that the matter stricken out was clearly irrelevant, as insufficient to constitute a legal defense. It is alleged that one L. A. Barrow, doing business under the name of Barrow Motor & Truck Company, made and delivered to the defendant Boyd a bill of sale on a truck, which was claimed by the plaintiff by virtue of a mortgage to the plaintiff’s assignor, outstanding at the time of the transaction with Boyd; that the plaintiff’s assignor sold trucks at wholesale to dealers for the purpose of reselling same, and both it and the plaintiff knew, or should have known, when said truck was sold to Bárrow Motor & Truck Company, it would be placed in their show rooms for the purpose of advertising and reselling same; that “at the time of the purchase of the said truck by the defendant” Boyd, it was on the floor of the place of business of the Barrow Motor & Truck Company and was being advertised for sale, etc. A “bill of sale” is an instrument in writing evidencing the transfer by one person to another of his right to or interest in personal property. • It does not conclusively appear from the allegations of defendant’s answer, stricken out by the Circuit Judge, that the transfer evidenced by the bill of sale was not such sale as might have been impliedly permitted or consented to by the plaintiff or its assignor as holder of the outstanding mortgage. It does not clearly appear that the possession of the property did not follow the bill of sale or that the instrument was given and taken merely as a security for1 a debt. In that view, it cannot be held that the allegations of the answer might not form the basis of a valid defense under the principles announced and applied in the case of Cudd v. Rodgers, 111 S. C., 507; 98 S. E., 796. It follows that appellant’s contention in that regard (exceptions 1 and 2) must be sustained. *344 It is accordingly adjudged that the order appealed from be, and is hereby, reversed. Messrs. Justices Watts, Fraser and Cothran concur. Mr. ChiEP Justice Gary did not participate.