Babb v. Sullivan

• Decision Date: 01 April 1895
• Citation: 21 S.E. 277,43 S.C. 436
• Parties: BABB, Clerk. v. SULLIVAN.
• Court: South Carolina Supreme Court

21 S.E. 277

43 S.C. 436

BABB, Clerk.

v.SULLIVAN.

Supreme Court of South Carolina.

April 1, 1895.

Res Judicata—Amendment of Judgment-Laches.

1. Where a judgment debtor, duly summoned to show cause why the judgment should not be revived, fails to set up a defense of part payment, the question is res judicata.

2. The order reviving a judgment failed to state any amount, and the judgment debtor, though duly summoned, failed to appear and set up his defense of part payment, and, with knowledge of the amount for which execution was revived, delayed for nearly 10 years to seek to amend the revived execution. Held, that he was precluded by laches.

3. Laches is the neglect to do what, in law, should have been done for an unreasonable and unexplained length of time and under circumstances permitting diligence.

4. Acquiescence is an intentional failure to resist the assertion of an adverse right.

Appeal from common pleas circuit court of Laurens county; T. B. Fraser, Judge.

Motion by Joseph P. Latimer and another to amend an execution. From an order granting the motion, plaintiff appeals. Reversed.

Featherstone & Son and Haskell & Dial, for appellant.

J. A. McCullough, for respondent.

BENET, A. A. J.¹ This was a motion to amend an execution made ex parte Joseph P. Latimer and John H. Latimer, as executors of the last will and testament of Hewlett Sullivan, deceased, in re M. E. Babb, as Clerk, Successor, etc., v. Hewlett Sullivan. The same moving parties made at the same time two other motions, —one in re Rice, as Clerk, Successor, etc., v. Sullivan, to vacate a judgment, and one in re Shell, as Clerk, Successor, etc., v. Sullivan, to quash an exe-

cution. All the three cases in which the

several motions were made were closely connected, and interdependent The circuit judge, in the decretal order appealed from, refused the first two motions, but granted the third, namely, the motion to amend the execution, remarking that "this motion is made in the event that both of the preceding motions were refused." To make plain the grounds upon which this third motion was granted, as well as the grounds upon which the order granting it was appealed from, it is necessary to set forth the following statement of facts: In 1877, Ira Rice, as clerk of court and successor of Homer L. McGowan, commissioner in equity for Laurens county, in a suit for foreclosure against Hewlett Sullivan and his sureties, John Hellams and C. P. Sullivan, Jr., recovered judgment against Hewlett Sullivan and John Hellams for $4,368.98. On this judgment, Hewlett Sullivan, from time to time, made various payments. In 1883 a copy summons to renew execution in the main cause was served on Hewlett Sullivan. It appears that both the original summons and the copy have been lost, and that there was some dispute whether the summons, in its terms, stated the amount for which it was proposed to renew the execution. But the attorneys who issued the summons made affidavit that, to the best of their recollection, the amount was stated therein as being for $1,000, and for $368.53 costs. To this summons to renew, the defendant Hewlett Sullivan failed to file either answer or demurrer, or to give notice of appearance. On the 2d of December, 1884, therefore, Judge Pressley granted his order that "the judgment and execution of Ira Rice, Clerk, Plaintiff, against Hewlett Sullivan, be renewed, to have the force, form, and effect of the former recovery, with leave to G. W. Shell to issue execution therefor." And on 12th December. 1884, counsel representing sundry creditors of M. A. Sullivan, deceased, to whose estate the debt was owing, procured the issuing of an execution in said cause against Hewlett Sullivan for $1,000, and for $368.53 costs. When this renewed execution was levied upon the land of Hewlett Sullivan, on the 12th of March, 1885, an action was commenced by him on 23d March, 1885, for the purpose of enjoining its enforcement, and to have the judgment canceled and marked "Satistied." In that action (Sullivan v. Shell) the plea of full payment was set up. The case was heard by Judge Hudson, who granted the order of injunction prayed for. On appeal to this court the judgment of the circuit court was reversed, and the complaint dismissed. Sullivan v. Shell, 36 S. C. 578, 15 S. E. 722. In that case, Mr. Chief Justice McIver, delivering the opinion of the court, said that the plaintiff, Sullivan, was not entitled to maintain the action, adding: "If he ever had any remedy, it should have been sought by a motion in the cause in which the Judgment complained of was rendered. But. even if he had resorted to that mode of relief, we do not see how he could have successfully met the plea of res adjudicata.

When he was served with summons to show cause why the judgment should not be revived, and execution issued to enforce the same, he was afforded the opportunity to raise the very same question which he now seeks to raise by this action, and this court has repeatedly decided that one who fails to do so when afforded such opportunity is forever afterwards estopped from doing so." Id., 36 S. C. 580, 15 S. E. 722. This opinion was handed down on 3d September, 1892. Thereafter, as we gather from the statement of facts in the brief, the renewed execution was again levied, when, Hewlett Sullivan having died, bis executors brought another action, claiming that the consideration of the judgment had failed, and asking relief on that ground. That action also was dismissed. Again was the renewed execution levied, whereupon the executors instituted this proceeding, making a motion in the original cause in which the judgment was rendered for an order to amend the renewed execution by reducing the amount from $1,000 to $76. It is not unlikely that this mode of relief was resorted to in consequence of the suggestion made in Sullivan v. Shell, supra, and quoted above. This motion was heard on its merits in the circuit court by Judge Fraser, who rendered his decree in favor of the executors, and granted the order moved for, holding as follows: "The plaintiff contends that, as the amount of the balance due upon the judgment was stated in the summons to renew, the defendant was estopped from disputing it. Assuming for the purpose of this motion that the summons did state that there was a balance of $1,000 and costs, $3G8.53, due upon the judgment, the order of Judge Pressley did but renew the judgment, with the form, force, and effect of the former recovery. The executors, therefore, have the right to show, if they can, that the execution has been renewed for too large a sum. The balance due upon the judgment at the date of the order of renewal being in dispute, it is ordered that it be referred to J. K. Jennings, Esq., as special referee to take testimony and report to this court the balance ascertained to be due upon said judgment at the time said execution was renewed, and that the execution be amended, if...