Virginia-Carolina Chemical Co. v. Hunter

Counsel

Messrs. Dial Todd and Grier, Park Nicholson , for appellant, submit: "This case has been to the Supreme Court three times, and on the second appeal the question was raised as to whether this particular claim should be proven along with other claims. The referee whose report was under review had found as follows: `It is, therefore, recommended that all creditors, with the exception of the plaintiff, be required by a general order to creditors to prove their claims in this suit.' The trial Judge confirmed the report of the referee in toto. On appeal, the Supreme Court, 94 S.C. 71 , 77 S.E. 754 , said of the proof of this claim: `The referee recommended that all creditors, except plaintiff, be required to prove their claim in this case. The appellants contend that the Court erred in requiring the defendant, Mrs. Evans, to prove her mortgage for $8,000 because the same had been adjudged to be a valid obligation of the defendant, Hunter; and the same position is taken with regard to the mortgage of the defendant, Blease. Clearly the validity of these mortgages is res judicata, and, therefore, it cannot be further questioned, but it has never been determined how much, if anything, has been paid on them. To illustrate: Mrs. Evans' mortgage was due more than a year before the commencement of this action. It was and is the duty of the debtor to pay it. He may have done so wholly or in part. There is nothing on the record to show that he has not. Therefore, there was no impropriety or error in requiring the stockholders of these claims to formally prove them in the sense of making it appear how much is due them, but their validity is not open to further question.' It is clear, therefore, that Mrs. Evans was required to prove this claim, just as other creditors were required to prove this claim — except the mortgage securing the claim and 552. Mr. Fred. H. Dominick , for respondent, submits: Question propounded was impertinent, matter called for being res judicata: 94 S.C. 66 , 69 , 71 .