Alsobrook v. Watts
| Citation | 19 S.C. 539 |
| Parties | ALSOBROOK v. WATTS. |
| Decision Date | 25 July 1883 |
| Court | United States State Supreme Court of South Carolina |
1. An exception, in the nature of argument, is not in proper form.
2. In the absence of any showing to the contrary, it will be assumed that the receiver of an estate has been authorized to institute proceedings to have a judgment made a lien.
3. The validity of an entry of satisfaction endorsed on an execution issued in 1872 on a judgment of that date, may be adjudicated under a summons to show cause (under the act of 1873, 15 Stat. 498,) why the judgment should not be made a lien and a new execution issued thereon, and, the return being found insufficient, the court may grant the prayer of the summons.
4. The statute having prescribed no time within which such summons may be issued, the courts cannot fix any limit.
5. The unauthorized entry bye the sheriff upon an execution to the effect that it had been satisfied by a release given by the plaintiff to a co-surety of defendant, does not give currency to the statute of limitations in defendant's favor.
6. It cannot affect this proceeding that the defendant here was not a party to an action in which the pretended release was set aside.
Before WALLACE, J., Chesterfield, September, 1881.
The opinion makes a full statement of the brief, excepting the Circuit decree, which was as follows:
As to the first ground of objection by defendant, the case of Moore v. Edwards , 1 Bailey 25 seems to be decisive. In that case the court held that it was competent for the court, under a sci. fa. to renew execution, to hear testimony in explanation of an entry of satisfaction on the fi. fa. , and to vacate the entry if satisfied it ought not to be there. Under our present practice, a summons is substituted for the sci fa. , and under the summons the court would exercise the same jurisdiction as under a sci. fa. Lawrence v. Grambling , 13 S. C. 127.
Was the issuing of the summons in this case delayed until the plaintiff lost the right under the statutes to renew his judgment? In Lawrence v. Grambling , 13 S. C. 126, the court says: " Neither the provisions of sections 306 and 307 of the code, nor those of section 15 of the act of 1873, prescribe any limit to the time within which a motion for leave to issue an original execution, or to revive one whose active energy has expired, must be made, and it must be concluded that any party having a judgment at the adoption of the code, or at any time since, can, on motion for leave, issue an execution, whatever might be the lapse of time since the entry of the judgment, provided it is not satisfied of record, or by lapse of time." The right to proceed under the act of 1873 to constitute a judgment obtained in 1872, a lien, before such judgment has been levied, seems to be equally unlimited in point of time as the right to issue executions. The proviso of section 14 of the act of 1873 relates to judgments that constitute liens. The judgment here has never been made a lien by levy or otherwise.
The defendant insists that the entry of satisfaction on the execution was a transaction in a public office that gave currency to the statute of limitations, and that the plaintiff is barred. It appears that the entry was made by the sheriff; that in point of fact there was no satisfaction. There is no evidence that either plaintiff or defendant had actual notice of the entry, or that the sheriff had any authority to make it. This state of facts will not give currency to the statute of limitations. As to the principle involved, see Miller v. Alexander , 1 Hill Ch. 25.
The administrator, F. L. Alsobrook, having been displaced by order of the court, and W. A. Evans having been appointed receiver of the estate, has, by leave of the court, the legal right to control this judgment, and, therefore, it is competent for him to institute these proceedings. Whoever has control of a judgment by transfer, either actual or by operation of law, has the right of the original plaintiff.
It is ordered that the judgment entitled F. L. Alsobrook, administrator, against Thomas H. Watts, do constitute a lien upon such real estate as is of the estate of Thomas H. Watts, deceased, and that it be revived, and that plaintiff have leave to issue and renew execution thereon.
Mr. R. E. Allison , for appellant.
Mr. M. J. Hough , contra.
F. L. Alsobrook, administrator of the estate of Willis W. Alsobrook, deceased, obtained separate judgments against Elizabeth P. Alsobrook, the widow of the intestate, Townley Redfearn and Thomas H. Watts, on a note given by said Elizabeth for purchases at the sale of the estate, with the other parties named, and one Bevins, as her sureties. The judgments were for $10,466.87 each, besides costs, and were obtained in September, 1872. A short time after these judgments were rendered, Townley Redfearn obtained a release under seal of the judgment against himself from the administrator, and the sheriff endorsed satisfaction on the execution issued thereon, appending a copy of the release thereto, and on the execution against Watts he endorsed the following statement:
The execution, however, was never returned to the clerk's office but was retained in the sheriff's office.
On August 15th, 1874, proceedings were instituted by summons, and complaint to open the entry of satisfaction on the Townley Redfearn judgment, and to set up the same against Redfearn. To these proceedings F. L. Alsobrook, Elizabeth Alsobrook, Townley Redfearn and Thomas H. Watts were made parties defendant, but before the cause was heard by the Circuit Court, Watts died, and his administratrix was never made a party until after the adjudication. The complaint demanded that the entry on the Redfearn execution should be adjudged fraudulent and void, but no reference was made to entry on the Watts fi. fa. This proceeding was successful as to Redfearn. Subsequently an order has been obtained to make the personal representatives of Thomas H. Watts parties, and it is stated that the cause has not yet ended, but to what extent it is still open and for what purpose does not appear. See Alsobrook v. Alsobrook , 14 S. C. 170.
W. A. Evans having been appointed receiver of the estate of Willis W. Alsobrook, instituted the present proceeding in 1881, by summons served upon Rose J. Watts, as administratrix of Thomas H. Watts, to show cause why the said judgment against Thomas H. Watts should not be made a lien on the estate of said Watts, and a new execution issued to enforce the same. The judgment was obtained in 1872, when, under the law then existing, judgments had no lien, and this proceeding was instituted under the act to provide a lien in such cases. The summons required the administratrix to show cause at the next ensuing term of the court for Chesterfield county.
The administratrix appeared and resisted the motion upon the following grounds: 1.
Judge Wallace, who heard the motion, overruled the objections of the respondent to the summons, and ordered " that the judgment in question do constitute a lien upon such real estate as is of the estate of Thomas Watts, deceased; that it be revived, and that plaintiff have leave to issue and renew execution thereon."
From this order Rose J. Watts, administratrix, has appealed.
1. " Because, in the proceedings instituted in the Circuit Court to open the entry of satisfaction made on the judgment of Townley Redfearn, neither Thomas H. Watts nor his administratrix were parties.
2. " Because the entry of satisfaction on the judgment against Thomas H. Watts cannot be annulled under a proceeding by summons to show cause, or upon a mere motion as in this case.
3. " Because, if such right exists, the time in which to do so under the statute had passed, and it was too late to start the proceeding when the notice of the motion was given in this case.
4. " Because the right to open or annul the entry and endorsement of satisfaction on this judgment was barred by the statute of limitations more than six years after the entry of satisfaction thereon, and before legal notice of these proceedings having expired.
5. " Because W. A. Evans, the receiver, has no right in this informal way to annul the entry of satisfaction, he not being the plaintiff in the judgment, and more especially as the plaintiff, F. L. Alsobrook, and Thomas H. Watts, the defendant, have not been made parties.
6. " Because the Circuit judge has erred in finding, as matter of fact, that there is no evidence that either plaintiff or defendant had actual notice of the entry of satisfaction, or that the sheriff had any authority to make it, for this question of fact could only be determined after said persons had been properly made parties.
7. " Because the fact is, that this entry of satisfaction having been made in a public office and placed on...
To continue reading
Request your trial