Opinion
18239
July 14, 1964.
Harvey L. Golden, Esq., of Columbia, for Appellants, cites: As to rule that foreign judgments can be attacked collaterally for the purpose of showing that the foreign court did not have jurisdiction: 166 S.C. 882; 22 S.E. 178, 44 S.C. 195; 1 Bailey 242; 84 S.E.2d 857; 91 S.E.2d 876; 18 Wall 457, 21 L.Ed. 897; 30 Am. Jur. 773, Judgments, Sec. 855. As to rule that a Plaintiff cannot, by an arbitrary statement of the facts of the controversy, prevent the Defendant from alleging other facts as the basis of a valid counterclaim: 47 Am. Jur., Setoff and Counterclaim, Sec. 93, p. 781. As to the act of fraudulent procurement of Plaintiff's judgment, which is the foundation of the Defendants' second counterclaim, being a legitimate defense: 203 S.C. 430, 275 S.E.2d 570. As to an action on a judgment being an "Action on a Contract" within the meaning of statutes allowing counterclaims in actions on contracts: 30 Am. Jur., Judgments, Sec. 931; 55 A.L.R. 469; 259 P. 614; Black, Judgments, (2d. Ed.) Sec. 958; 71 Fed. 649; 54 Minn. 14, 55 N.W. 744; 132 App. Div. 274, 117 N Y Supp. 26; 136 App. Div. 495, 121 N.Y. Supp. 189; 186 Cal. 344, 199 P. 525; 4 Keyes (N.Y.) 335; 114 Mo. 651, 21 S.W. 839; 3 N.Y.S.R. 261; 98 F. Supp. 436; 73 S.E. 129; 26 S.E.2d 871; 178 N.E. 679; 45 A.2d 218; 78 A.2d 591; 109 N.W. 300; 11 Bucks 68; 192 A. 105; 207 P.2d 417; 16 S.E.2d 53; 90 F.2d 294. As to Defendants' First Counterclaim being an ex contractu action properly allowable against a suit on a foreign judgment: 232 S.C. 397, 102 S.E.2d 360; 232 S.C. 433, 102 S.E.2d 743.
Messrs. Clarke W. McCants, Jr., and James H. Fowles, Jr., of Columbia, for Respondent, cite: As to the Appellants' exceptions not complying with Rule 4, Section 6 of the Rules of the Supreme Court: 236 S.C. 141, 113 S.E.2d 756; 229 S.C. 126, 92 S.E.2d 132; 118 S.C. 93, 109 S.E. 804. As to a judgment being conclusive as to all issues that were raised or could have been raised: 126 S.C. 207, 119 S.E. 571; 236 S.C. 487, 115 S.E.2d 68; 52 S.C. 516, 30 S.E. 475. As to counterclaims not being permitted in an action brought upon a foreign judgment: 153 S.C. 43, 150 S.E. 316. As to an action on a foreign judgment not being one in contract: Speer's Eq. 215, 17 S.C. Eq. 215. As to Respondent's demurrer being proper and should have been sustained by the lower court: 241 S.C. 110, 127 S.E.2d 199; 225 S.C. 77, 80 S.E.2d 925.
July 14, 1964.
Plaintiff instituted this action in the Richland County Court on a judgment recovered against defendants in the State of New York in the principal sum of $1,085.25. By way of answer the defendants have interposed certain defenses to the complaint and have entered two counterclaims. The defendants demurred to the counterclaims and moved to strike on the grounds that the counterclaims were sham, frivolous and irrelevant in that they constitute a collateral attack upon plaintiff's judgment.
The matter was heard before the Honorable Legare Bates, Judge of the Richland County Court, who by his order of July 29, 1963, granted plaintiff's motion to strike the counterclaims interposed by defendants on the grounds that such counterclaims constituted a collateral attack upon the judgment obtained. Plaintiff's demurrer was not ruled upon.
Plaintiff contends that none of defendants' five exceptions comply with Rule 4, Section 6, of the Rules of the Supreme Court and that this Court should dismiss the appeal for this reason. Supreme Court Rule 4, Section 6, states:
"Each exception must contain a concise statement of one proposition of law or fact which this Court is asked to review, and the same assignment of error should not be repeated. Each exception must contain within itself a complete assignment of error, and a mere reference therein to any other exception then or previously taken, or request to charge will not be considered. The exceptions should not be long or argumentative in form."
The object of an exception is to present some distinct principle or question of law which the Appellant claims to have been violated by the Court in the trial of the case from which the appeal is taken, and to present it in such form that it may be properly reviewed.
Examination of the exceptions reveals that none imputes error to the lower Court but rather the exceptions are mere statements of fact or propositions of law which in some instances were not passed upon by the lower Court.
We conclude that the appeal in this case should be dismissed because the exceptions failed to comply with the Rules of this Court.
Appeal dismissed.