August 29, 1927. The opinion of the Court was delivered by This is an action for judgment upon several notes executed by the defendant Banks and for the foreclosure of chattel and real estate mortgages securing the same.
The appeal is from an order of his Honor Judge DeVore (1) overruling a demurrer interposed by the plaintiffs to an alleged counterclaim set up by the defendant; (2) refusing the plaintiffs' motion to have certain allegations of the defendants' answer stricken out as sham and irrelevant; (3) refusing the plaintiffs' motion to require the defendants' answer to be made more definite and certain; and (4) refusing the plaintiffs' motion for a compulsory order of reference.
I. The counterclaim to which the demurrer was interposed consists of an alleged cause of action based upon a conversion of certain personal property — a tort, which cannot be set up as a counterclaim in an action based upon contract. Lenhardt v. French, 57 S.C. 493;35 S.E., 761. Bank of Charleston, National Banking Ass'n,v. Bank of Neeses, 127 S.C. 210; 119 S.E., 841. Humbertv. Brisbane, 25 S.C. 506. Tuttle v. Gilbert Manuf'gCo., 145 Mass. 169; 13 N.E., 465.
II. An order refusing motion to strike out allegations of a pleading as sham and irrelevant is not appealable before final judgment. Southern Iron Equipment Co. v. Orangeburg Ry., 101 S.C. 150;86 S.E., 26. Green v. Atlanta C.A.L.R. Co., 135 S.C. 147;132 S.E., 172.
III. An order refusing motion to require a pleading to be made more definite and certain is not appealable before final judgment. Green v. Atlanta C.A.L.R. Co, 135 S.C. 147; 132 S.E., 172. Pendleton v. ColumbiaRy., Gas Electric Co., 132 S.C. 507; 128 S.E., 711.
IV. The refusal of plaintiffs' motion to order a compulsory reference is sustained by the case of PalmettoBank Trust Co. v. Grimsley et al., 140 S.C. 101;138 S.E., 624, filed June 20, 1927, and cases cited therein. *Page 13
It follows that the order of his Honor Judge DeVore is modified by reversing it so far as it overrules the plaintiffs' demurrer to the defendants' counterclaim, and affirming it in other respects.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES STABLER and CARTER concur.
MR. JUSTICE BLEASE disqualified.