2 S.C. 422 | S.C. | 1871
The opinion of the Court was delivered by
Th is objected to the notice of appeal that it is based upon the order for judgment, and not upon the judgment itself.
Placing this liberal interpretation on the terms of the notice, with reference to the manifest object of the appeal, we are enabled to treat it as substantially an appeal from the judgment itself.
A judgment upon an answer as frivolous is appealable to this Coirrt.
An answer to be adjudged frivolous must be clearly so. If argument is required to establish that character, the Court will not dispose of it in this summary manner.
The complaint was on a draft drawn by the defendant Crews and accepted. The plaintiffs are holders for a valuable consideration. The answer alleges that the defendant Crews drew the draft as agent for a third party, and for the payment of a debt due by such third party to the drawee, and that the di*awee took the bill upon such understanding. It also charges that the plaintiffs took the draft with knowledge of these facts.
With the truth or falsity of the answer we have nothing to do. If demonstrably false the remedy ivas to strike it out as sham. Its truth must be assumed. If frivolous it is only so in its legal bearings. Nor will we merely criticise the mode in which the facts contained within it are alleged, upon an application of this nature. It is not the purpose of such a motion to enable the plaintiff to take advantage of defects or inadvertences in the form of pleading.
To meet the charge of frivolousness the pleading must be of that character in its entire scope and bearing, and not merely through a formal defect that might bo cured by amendment.
All that we are called on to say of the defense set up by the answer is that it is not frivolous. If the fact stated is true,, the drawee could not hold the defendant personally upon it, nor could a holder for value with notice have any higher rights than the drawee himself.
The judgment below must be reversed and the case remanded for further proceedings.
