Opinion
12150
January 31, 1927.
Before HENRY, J., Marlboro, December, 1925. Reversed.
Action by Union Savings Bank against Mrs. Alice B. Hubbard. From an order striking out answer of defendant, she appeals.
Mr. N.W. Edens for appellant cites: Maker of note not bound by conditional delivery until happening of condition: Civ. Code, 1922, Sec. 3667. Failure of consideration for note as defense against one not a holder in due course: Civ. Code, 1922, Sec. 3679. Objection to sham defense raises question of fact for Court: 6 S.C. 113. Answer denying any material allegation cannot be stricken out as sham: 43 S.C. 17. Cases distinguished: 130 S.C. 44; 101 S.C. 185; 100 S.C. 196; 97 S.C. 389.
Mr. J.K. Owens for respondent cites: Objection to sham defense raises question of fact for Court: 130 S.C. 44.
January 31, 1927. The opinion of the Court was delivered by
The exceptions and grounds of appeal question the correctness of the rulings of Judge Henry in dismissing the answer of appellant on the ground that it was sham, irrelevant, and does not constitute a defense. The answer pleads failure of consideration, and that was an issue that appellant was entitled to have submitted to a jury.
This Court has decided in several cases that to decide an issue of fact on affidavits in most cases is unsatisfactory.
Here we have an issue of fact raised by the pleadings decided by his Honor, on most conflicting affidavits.
His Honor was in error, and the order appealed from is reversed.
MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER, and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.