Opinion
12367
February 1, 1928.
Before SEASE, J., Cherokee, December, 1926. Affirmed.
Action by the State Planters' Bank Trust Company against J.F. Jenkins and others. Judgment for plaintiff, and named defendant appeals.
Mr. Stanyarne Wilson for appellant.
Messrs. Dobson Vassey, and Butler Hall, for respondents, cite: Exception too general and indefinite: 110 S.C. 231; 132 S.C. 176; Rule 4, Section 6, Rules Supreme Court. Exception not discussed or argued by appellant in brief may be taken as abandoned: 138 S.C. 169. As to amount of attorneys' fees: 84 S.C. 458; 94 S.C. 383; 122 S.C. 382.
February 1, 1928. The opinion of the Court was delivered by
Action for foreclosure of real estate mortgage. The defendant Jenkins, the mortgagor, has appealed from the decree of Hon. Thomas S. Sease, Circuit Judge.
The first exception complains of error because the Circuit Judge did not sustain the contention of the appellant that the complaint should be dismissed as an entirety, and, if not so, then at least as to the first cause of action, for the reason that, if payments on the mortgage debt made by the mortgagor had been fairly and properly applied to the notes and mortgage, there would have been no default on the part of the mortgagor. The evidence shows that, after the mortgagee received the payments, and made application thereof to the several notes, due notice of such application was given to the mortgagor, and there was no complaint about the application until after this suit was filed. This was a question of fact, and the testimony amply sustains the finding of the Circuit Judge.
The second exception imputes error to the allowance of attorney's fees of 5 per cent. by the Circuit Judge. The Referee, who heard the cause, recommended 10 per cent attorney's fees, which the Circuit Judge reduced to 5 per cent. Under the circumstances of the case, it appears to us that Judge Sease was very liberal with the defendant.
The judgment of this Court is that the appeal be dismissed, and the decree of the Court of Common Pleas of Cherokee County be affirmed.
MESSRS. JUSTICES COTHRAN, STABLER and CARTER, and MR. ACTING ASSOCIATE JUSTICE J. WILLIAM THURMOND concur.