
    13949
    COHEN v. HOME BUILDING & LOAN ASSOCIATION OF SPARTANBURG ET AL.
    
    (177 S. E., 320)
    
      
      Mr. Horace L. Bomar} for appellant,
    
      
      Messrs. H. B. Ravenel, J. W. Mansfield and Evans, Galbraith & Holcombe, for respondent,
    November 20, 1934.
   The opinion of the Court was delivered by

Mr. Acting Associate Justice C. T. Graydon.

The plaintiff sued the defendant in October, 1933, in the Court of Common Pleas for Spartanburg County for the cancellation of a mortgage given by the plaintiff to the Home Building & Loan Association of Spartanburg.

The Home Building & Loan Association of Spartanburg had Hon. W. H. Townsend, presiding Judge of the Seventh Judicial Circuit, on November 1, 1933, to issue a rule to show cause against the plaintiff why the complaint in the action should not be dismissed on the ground that the plaintiff had failed to comply with the provisions of Act No. 622, March 9, 1933 (38 St. at Large, p. 1174), with reference to securing the authority of the Governor to bring the action.

Thereafter, on the 20th of November, 1933, an amended petition was filed by the Home Building & Loan Association reiterating the position taken before Judge Townsend. About the same time an amended answer was filed setting forth in detail the position of the Home Building & Loan Association. This portion of the matter was heard ultimately by Judge Sease, who passed his order dated December 22, 1933, in which he refused the prayer of the petition of defendant and allowed plaintiff to proceed with her suit and in the same order referred the matter to Hon. Le Roy Moore, master, to take the testimony and report the same back with all convenient speed.

The testimony was taken by references in the spring of 1934, and the matter came for a final hearing before Hon. E. C. Dennis, presiding Judge, who signed his decree on April 27, 1934, dismissing the complaint for the reasons therein stated. The order of Judge Dennis contains a sufficient statement of the facts and issues involved. The effect of the order of Judge Dennis is that the mortgage should not be canceled, but he in no wise attempted to finally adjudicate the rights of the parties, leaving the question of an accounting between them open for future determination. Judge Dennis holds, in effect, that the complaint should be dismissed for the reason that the action is one in the nature of a penalty and that under the circumstances the defendant should not be penalized.

We are merely stating this in order to make it perfectly clear that the rights of neither of the parties are to be prejudiced in an accounting as to the amount which may be due to the defendant by the plaintiff or to the plaintiff by the defendant. We have carefully examined the order of Judge Dennis, however, and the same, in our opinion is a proper order and with the observation above set forth is adopted by this Court.

The judgment of this Court is that the judgment of the Circuit Court be affirmed.

Messrs. Justices StabeEr', Carter and Bonham concur.  