Opinion
17650
May 4, 1960.
Messrs. Nelson, Mullins Grier, of Columbia, for Appellants, cite: As to order of trial Judge refusing to strike allegations from complaint being appealable in instant case: 102 S.C. 442, 86 S.E. 817, Ann. Cas. 1917-D 1149; 87 S.C. 254, 69 S.E. 292; 217 S.C. 38, 59 S.E.2d 495; 216 S.C. 500, 59 S.E.2d 132; 219 S.C. 231, 64 S.E.2d 641; 174 S.C. 497, 178 S.E. 131; 194 S.C. 290, 9 S.E.2d 537; 208 S.C. 292, 38 S.E.2d 18; 215 S.C. 468, 56 S.E.2d 95; 299 S.C. 296, 92 S.E.2d 702. As to the alleged agreement set forth in the Complaint being invalid because it is not supported by any consideration other than the mutual promises of the parties thereto; and if any such agreement existed, it would be invalid because contrary to public policy: 210 S.C. 56, 41 S.E.2d 599; Fletcher Cyclopedia Corporations (Perm. Ed.) Vol. 5, Sec. 2055. As to certain allegations of complaint, with reference implied contract, being conclusions of pleader and having no factual support: Williston on Contracts, Vol. 1, Sec. 3; 105 S.C. 475, 81 S.E. 313; 17 C.J. S., Contracts, 318; 286 F. 890; 158 F.2d 499; 194 S.C. 469, 10 S.E.2d 3; 23 Am. Jur. 768. As to general allegations of misconduct not being sufficient to sustain a pleading: 291 N.Y. 142, 51 N.E.2d 681. As to there being no allegations of facts in the Complaint to justify the pleader's conclusion that the Defendants were guilty of any deception in obtaining the proxies referred to in the Complaint: Fletcher Cyclopedia Corporations, Vol. 5, Sec. 2060; 96 A.2d 233. As to rule that a new election should not be directed to correct an alleged grievance which, if sustained, would not change the result: 85 N.Y.S.2d 187; 138 N.Y. 557, 34 N.E. 388; Fletcher Cyclopedia Corporations, Vol. 2, Sec. 292.
Messrs. Robinson, McFaddin Dreher and Augustus T. Graydon, of Columbia, for Respondents, cite: As to circumstances of case not justifying stay order: 87 S.C. 301, 69 S.E. 604. As to court discouraging intermediate appeals: 103 S.C. 55, 87 S.E. 439; 76 S.C. 189, 56 S.E. 956; 68 S.C. 494, 47 S.E. 689. As to order overruling motion to strike not being appealable: 78 S.C. 562, 48 S.E. 458; 233 S.C. 424, 105 S.E.2d 521; 231 S.C. 288, 98 S.E.2d 530; 230 S.C. 507, 96 S.E.2d 488; 110 S.C. 148, 96 S.E. 389. As to allegations, objected to as irrelevant, immaterial, redundant and prejudicial, not being subject to demurrer: (S.C.) 50 S.E. 542; 80 S.C. 491, 61 S.E. 1003; 214 S.C. 283, 52 S.E.2d 266; 4 DeSaus. Eq. 251; 194 S.C. 290, 9 S.E.2d 537; 208 S.C. 292, 38 S.E.2d 18. As to complaint stating cause of action and not being subject to demurrer: 190 S.C. 392, 3 S.E.2d 38; 213 S.C. 43, 48 S.E.2d 599; 115 S.C. 421, 106 S.E. 33; 71 S.C. 303; 141 S.C. 86, 139 S.E. 174; 110 S.C. 148, 96 S.E. 389; 222 S.C. 21, 71 S.E.2d 499; 233 S.C. 75, 103 S.E.2d 521; 193 S.C. 320, 8 S.E.2d 515. As to the breach of a fiduciary relationship being specifically alleged, thereby clearly setting forth a cause of action for fraud and deceit: 23 Am. Jur., Fraud and Deceit, 764-766; 190 S.C. 515, 3 S.E.2d 251; 186 S.C. 77, 194 S.E. 636; 208 S.C. 292, 38 S.E.2d 18; 174 S.C. 497, 178 S.E. 131; 222 S.C. 450, 73 S.E.2d 720. As to a promoter's fiduciary obligations: 1 Fletcher Cyclopedia Corporations, Secs. 191, 192; Bogart, Trust and Trustees, Secs. 482, 488; 23 Words and Phases 51; 156 S.E. 259; 8 S.W.2d 400; 1 Fletcher on Corporations 614, Sec. 192; 224 App. Div. 614, 231 N.Y.S. 265; 10 P.2d 1017; 154 Fed. 606; 208 P. 775. As to director's fiduciary obligations: 308 U.S. 295, 84 L.Ed. 281; 219 S.C. 174, 64 S.E.2d 524; 148 S.C. 446, 146 S.E. 420; 196 S.C. 466, 13 S.E.2d 496; 94 S.C. 312, 77 S.E.2d 1023; 131 N.E. 177; 90 N.E.2d 536, 14 A.L.R.2d 849; 198 N.E. 774, 96 A.L.R. 611; 16 S.C. 334; 27 N.W.2d 576, 171 A.L.R. 447; 6 P. 373, 84 A.L.R. 608; 61 F.2d 577; 98 Cal.App.2d 562, 220 P.2d 50, 23 A.L.R.2d 372; 226 S.C. 94, 88 S.E.2d 745; 64 W. Va. 137; 1 Thompson on Attorneys at Law 276, 277; 91 N.Y. Sup. 917; 73 S.W. 865; Drinker on Legal Ethics 92; 249 N.Y. 458, 164 N.E. 545. As to the law of implied contracts: 105 S.C. 475, 81 S.E. 313; 222 S.C. 492, 73 S.E.2d 688; 178 S.C. 9, 181 S.E. 897. As to the person designated in a proxy having a fiduciary obligation to carry out the wishes of the stockholder to the best of his ability: 96 A.2d 233; 5 Fletcher Cyclopedia Corporations 230, 231, Sec. 2060.
Messrs. Nelson, Mullins Grier, of Columbia, for Appellants, in Reply, cite: As to Plaintiff's Complaint failing to allege any facts from which fraud or deceit may be inferred: 193 S.C. 115, 7 S.E.2d 841; 203 S.C. 333, 27 S.E.2d 455; 223 S.C. 503, 109 S.E.2d 161; 105 S.C. 72, 89 S.E. 546. As to Motion to Strike being the proper remedy: 166 S.C. 454, 165 S.E. 203. As to the implied contract: 85 S.C. 257. As to there being no proper allegation of fact to support charge of conspiracy: 151 A. 303. As to rights of a majority of the shareholders: (Va.) 85 S.E.2d 353.
May 4, 1960.
This is an appeal from an Order overruling a motion to strike certain allegations from the complaint on the grounds that the same are irrelevant, immaterial and prejudicial.
"An order refusing to strike allegations in the pleadings as irrelevant and redundant is not appealable." Sparks v. D. M. Dew Sons, Inc., 230 S.C. 507, 96 S.E.2d 488.
Exceptions to the foregoing rule have only been recognized (1) where the motion to strike is in the nature of a demurrer, Thomas v. Colonial Stores, Inc., S.C. 113 S.E.2d 337; or (2) where there is an appealable issue before the Court, an Order refusing a motion to strike may also be considered in order to avoid unnecessary litigation, Woods v. Rock Hill Fertilizer Co., 102 S.C. 442, 86 S.E. 817; Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 59 S.E.2d 132; DePass v. Piedmont Interstate Fair Ass'n, 217 S.C. 38, 59 S.E.2d 495.
The facts here do not bring the appeal within either of the exceptions. The only matter involved in this appeal is the Order refusing the motion to strike, and it is conceded by Appellant that if the motion to strike were granted, the remaining allegations of the complaint state a cause of action. The motion cannot, therefore, be treated as a demurrer.
It should be stated, however, that the refusal of the motion to strike by the Circuit Judge is not conclusive upon the trial of the case on the merits, Sparks v. D.M. Dew Sons, Inc., supra. As stated in the Sparks case:
"Upon trial, however, appellant will not by the order appealed from or this opinion be precluded or in anywise prejudiced in its efforts to exclude such testimony as may be offered in support of the allegations sought to be stricken from the complaint."
Appeal dismissed.
TAYLOR, LEGGE and MOSS, JJ., and THOMAS P. BUSSEY, Acting Justice, concur.