
    8566
    BRAND SHOE CO. v. WOMEN’S WEAR SHOP.
    Pleadings. — A® answer alleging “the defendant * * * for a first defense alleges that it denies every allegation in the said complaint contained and therein stated,” is not frivolous.
    Before Spain, J., Barnwell, March, 1913.
    Affirmed.
    Action by Brand Shoe Company against Women’s Wear Shop. Plaintiff appeals.
    
      Mr. Thos. M. Boulware, for appellant,
    cites: 14 Barb. 553; 18 How. Pr. 240; 2 Abb. Forms 17.
    
      Mr. James M. Patterson, contra.
    May 28, 1913.
   The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an action on account for goods, which the complaint alleges were sold by the plaintiff to the defendant, and the appeal is from an order refusing to strike out the answer as frivolous.

The answer is as follows:

“The defendant, Women’s Wear Shop, answering the complaint herein, and for a first defense thereto, alleges that it denies every allegation in said complaint contained and therein stated.”

His Honor, the Circuit Judge, refused the motion to strike out the answer as frivolous, on the ground that it is a general denial.

In the first place, an order refusing to strike out an answer on the ground of frivolousness is not appealable. Bank v. Witcover, 77 S. C. 441; Harbert v. Atlanta etc. Ry., 74 S. C. 13.

But waiving such objection the appeal can not be sustained. The defendant concedes that the answer would have been sufficient if the defendant had denied the allegations of the complaint, without alleging that it did so.

We do not deem it necessary to cite authorities to show that the difference in form is wholly immaterial.

Appeal dismissed.  