36 S.C. 551 | S.C. | 1892
The opinion of the court was delivered by
These two cases present the same questions and were heard and will be considered together. They were actions for the foreclosure of mortgages, and the complaints were in the usual form, alleging that “the defendant, R. A. Johnson, trustee, is indebted to the plaintiff” in a specified sum of money on two promissory notes, copies of which are set out in the complaints, signed “R. A. Johnson, trustee;” that the defendant executed a mortgage to the plaintiff to secure the payment of said notes on a tract of .land which had been sold and conveyed by the plaintiff to the said defendant, and that the notes sued upon represented “the unpaid purchase money owing by defendant to plaintiff' for the same; that the defendant has refused to pay the same;” and after other allegations wholly immaterial to the question which we are called upon to decide, judgment is demanded for a sale of the mortgaged premises, and the application of the proceeds thereof to the costs of the action and to the amount due upon the mortgage debt, and that execution for the balance issue “against the said R. A. Johnson, trustee.” The defendant demurred upon the ground, “That there is a defect of parties defendant in the omission of the name of the cestui que trust in the complaint, for whom the defendant herein, as is alleged in the complaint, executed the notes and mortgage sued upon in this action, as trustee.”
The case came on for hearing before his honor, Judge Fraser, upon the complaint and the demurrer thereto, who granted an order, on the 13th November, 1891, overruling the demurrer, and referring the case to a referee to report the amount due upon the plaintiff’s notes and mortgage, with leave to report any special matter. On the same day, but whether before or after the order was signed does not appear, defendant gave notice of appeal upon the grounds which will be presently stated. It dees not appear whether defendant made any motion for leave to answer over, or to stay proceedings pending bis appeal, or whether the judge made or was requested to make any ruling relative thereto.
The defendant’s exceptions are as follows: “1st. The demurrer should not have been overruled, because the evidence con-
The judgment of this court is, that the judgment of the Circuit Court, in each of the cases above stated, be affirmed.