Amick v. Amick
| Decision Date | 02 October 1900 |
| Parties | AMICK v. AMICK et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Lexington county; James Aldrich, Judge.
Proceeding on motion by Oma S. Amick against Simon Amick and others for leave to issue execution on a certain judgment, and to certify on the execution that the judgment was for the purchase money of realty. From a decree refusing the motion complainant appeals. Affirmed.
G. T Graham, for appellant.
Efird & Dreher, for respondent Amick.
While I agree with Mr. Justice POPE in the view which he has taken of the sixth and seventh exceptions, I am unable to agree with him in the views which he has expressed in reference to the other exceptions. The undisputed facts are that on the 20th day of February, 1889, the plaintiff recovered a judgment against the defendants, in a trial justice court, in Lexington county, for the sum of $90.01, and "that a transcript of said judgment was duly lodged in the office of the clerk of the court of common pleas of Lexington county, on the 17th day of May, 1889, and was duly docketed in the office of the clerk of said county, which said judgment now constituted judgment roll No. 848 of the court of common pleas of Lexington county, S. C." It further appears "that no part of said judgment has been paid, and no execution has ever been issued upon said judgment by the clerk of the court of the said county." It is also claimed by the plaintiff that the debt upon which said judgment was recovered was for the purchase money of the tract of land upon which the defendant Simon Amick resides, but this claim is contested by the defendants. On the 7th of February, 1898, the plaintiff gave defendants notice of a motion before the circuit court "for leave to issue an execution upon the judgment in the above-entitled action against the defendants Simon Amick and Henry D. Taylor, and that a certificate be indorsed on said execution showing that said judgment is for the purchase money of the tract of land described in the affidavit of the plaintiff, which is hereto attached." The circuit judge refused the motion, holding that, the 10 years during which the judgment had a lien not having expired, there was no necessity for an order granting leave to issue an execution, and also holding that the evidence adduced was insufficient to show that the debt upon which the judgment was recovered was a debt for the purchase money of the land. It is true that the circuit judge in his decree does say that, if this proceeding should be regarded as an application to review the judgment, then the plaintiff cannot succeed, because the Code expressly provides, in subdivision 2 of section 309, that such relief must be sought by summons. But this point seems to me wholly immaterial, as it is very apparent, from the terms of the plaintiff's notice of motion, that she sought no such relief.
So that, practically, the exceptions of appellant raise but two questions: (1) Whether there was error in refusing the motion for an order granting leave to plaintiff to issue an execution; (2) whether there was any error in refusing to require the clerk to indorse upon the execution the desired certificate for the purpose of avoiding the effect of the homestead exemption. As to the second of these questions, it is needless for me to say anything, as I concur in the view taken of that question by Mr. Justice POPE. I shall therefore confine my remarks to the first question.
I do not suppose that it will be denied that if the plaintiff, at the time she commenced this proceeding, could have issued her execution for the enforcement of her judgment without leave of the court, there would have been no error in refusing her motion. So that the question is narrowed down to the inquiry whether she could have then issued her execution without leave. In section 87 of the Code it is provided as follows: etc. (Italics mine.) And in subdivision 13 of section 88 of the Code the provision is as follows: "If the judgment be docketed with the clerk of the circuit court, the execution shall be issued by him to the sheriff of the county, and have the same effect, and be executed in the same manner, as other executions and judgments of the circuit court." The effect of these statutory provisions is to put a judgment obtained before a trial justice (now a magistrate), after it has been duly transcripted to the circuit court and docketed by the clerk thereof, precisely upon the same footing as a judgment originally obtained in the circuit court, and the same may be enforced in the same manner as such last-mentioned judgment. This view is expressly recognized in Rhoad v. Patrick, 37 S.C. 517, 16 S.E. 536. See, also, to same effect, Lawrence v. Isear, 27 S.C. 244, 3 S.E. 222, and Garvin v. Garvin, 34 S.C. 388, 13 S.E. 625.
Now, it being conceded that the plaintiff's judgment, originally obtained in a trial justice court on the 20th day of February, 1889, had been duly transcripted to the office of the clerk of the court of common pleas, and there docketed by the said clerk on the 17th day of May, 1889, it became from that date, under the law above cited, a judgment of the circuit court, to be enforced in the same manner as & judgment of that court. So that the practical inquiry is whether a judgment of the circuit court, entered on the 17th of May, 1889, could be enforced by an execution issued without leave of the court, at any time within 10 years from the date of such entry. To this question the provisions of the Code and atleast one decision of this court furnish a conclusive answer in the affirmative. Section 303 of the Code provides as follows: "Writs of execution for the enforcement of judgments shall conform to this title, and the party in whose favor judgment has been heretofore or shall hereafter be given, and, in case of his death, his personal representative, duly appointed, may, at any time within ten years after the entry of judgment, proceed to enforce the same as prescribed by this title." And section 310, subd. 1, Code, reads as follows:
These provisions clearly show that an execution may issue, without leave of the court, to enforce a judgment, at any time within 10 years from the date of such entry, and such view is fully supported by the case of Lawrence v. Grambling, 13 S.C. 120. Now, as it is apparent that the application of the plaintiff for leave to issue an execution to enforce her judgment was made not only within 10 years from the date of entry of such transcript of judgment in the office of the clerk of the circuit court, but also within 10 years from the date when the judgment was originally obtained in the trial justice court, there could be no error of law in refusing her motion for leave to do that which she had the right to do without leave of the court. The construction in the leading opinion, that the language used in the last sentence of subdivision 1 of section 310 of the Code quoted above forbids the plaintiff from issuing execution upon her judgment without leave of the court, cannot, in my judgment, be sustained. The object of the language relied upon was simply to declare to what court the application for leave to issue an execution on a judgment of a trial justice which had been transcripted to the circuit court should be made, when application for leave to issue an execution became necessary. There is not a word used in that sentence indicative of an intention on the part of the legislature to forbid a plaintiff from issuing an execution to enforce a judgment originally obtained before a trial justice, and afterwards transcripted to the circuit court, without leave of the court; but, on the contrary, the sole purpose of the language relied upon was to declare that, when an application for leave to issue an execution on such a judgment becomes necessary, such application must be made, not to the trial justice court, but to the circuit court. So that, even if the last sentence in subdivision 1 of section 310 of the Code stood alone, the inference which has been drawn from it would not be justified; but, when considered in connection with the other provisions of the other sections of the Code cited above, it becomes still more apparent that such an...
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