Blackmon v. Kirven, No. 13903.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtCARTER, Justice
Citation175 S.E. 814
Docket NumberNo. 13903.
Decision Date07 September 1934
PartiesBLACKMON. v. KIRVEN.

175 S.E. 814

BLACKMON.
v.
KIRVEN.

No. 13903.

Supreme Court of South Carolina.

Sept. 7, 1934.


[175 S.E. 814]

Appeal from Common Pleas Circuit Court of Darlington County; H. P. Rice, Judge.

Action by Idella Blackmon, a minor, by her guardian ad litem, J. Oscar Blackmon, against John K. Kirven. A judgment for plaintiff was affirmed by the Supreme Court (170 S. C. 190, 170 S. E. 157), and proceedings were instituted to obtain execution on the judgment. From an order of the circuit court requiring the sheriff to arrest the defendant and commit him to jail until he paid the judgment and from an order settling the case for appeal, the defendant appeals.

Affirmed.

See, also, (S. C.) 175 S. E. 637.

The order ordered to be incorporated in report follows:

Order

This is an application to me upon due notice for an order for execution against the person of the defendant, and the matter was heard by me at the Fall term of court for said County.

The petition, and also the judgment Roll in the case, shows that this is an action for damages for assault on the plaintiff by the defendant; that the case was tried by jury, a verdict returned in favor of the plaintiff against the defendant in the sum of $5000; the judgment of the circuit court affirmed by the Supreme Court; execution issued against the property of the defendant, and a nulla bona returned on said execution by the Sheriff, and the said execution therefore remains unsatisfied.

The complaint petition discloses a cause of action in which the defendant might have been arrested under the statutory laws of this State, and a statement of facts showing at least one of the causes for arrest required by Sec. 500 of the Code of 1932.

It further appears from the records and the statements of Counsel, that after the nulla bona return by the sheriff, supplementary proceedings were begun, and now are pending, by which the plaintiff seeks to set aside as null and void, certain conveyances of real estate by the defendant to his wife and daughter, with the purpose I assume of subjecting such real estate to the lien of the judgment against the defendant, and make such realty available for levy under the execution.

The plaintiff contends that under the state of facts now existing in this case, this court cannot order execution against the person of the defendant for the reason that proceedings in execution against the property of the defendant are now pending; that plaintiff may have one of two remedies, to-wit: execution against the property of the defendant, or execution against the person of the defendant, by arrest, but not both. This statement of the law is in the main correct. The authorities hold that both may be issued at the same time, only one may be pursued to a termination, and if this one pursued result in a payment of the debt then the other remedy

[175 S.E. 815]

is gone. They further appear to hold that if execution is issued against the property of the defendant and a levy actually made it will be presumed, until the contrary appears, that the debt has been satisfied; and the same may be said of execution against the person. However, if execution against the person do not actually result in payment of the debt, the lien on the real estate of the debtor is not discharged.

If the defendant were correct as to the state of facts now existing in this case, then his contention that this court could not order execution against his person would be correct. But in this I do not agree. Proceedings under the execution against the property of the defendant are at an end until property of the defendant may be found upon which the execution may operate. The purpose of the supplementary proceedings is to find such property. The plaintiff contends that certain conveyances of real estate made by the defendant to his wife and daughter are null and void, and if she is correct, and the court so declares, then it will again be in order for the sheriff to levy under the execution.

It is therefore upon motion of plaintiff ordered:

That the clerk of this court do forthwith issue execution to the sheriff of Darlington County requiring the said officer to arrest the defendant and commit him to the jail of Darlington County until he shall pay the judgment herein or be discharged according to law.

Samuel Want and Melvin Hyman, both of Darlington, for appellant.

Robinson & Robinson, of Columbia, and L. M. Lawson, of Darlington, for respondent.

CARTER, Justice.

This case, commenced in the court of common pleas for Darlington county, comes to this court on appeal from an order issued by his honor, Judge H. F. Rice, requiring the clerk of court for Darlington county to issue execution to the sheriff of Darlington county, requiring the sheriff of said county to arrest the defendant, John K. Kirven, and commit him to the jail of said county "until he shall pay the judgment herein or be discharged according to law, " which order was based upon the verified petition of the plaintiff and the record in the cause. In order that the appeal before this court may be better understood it is well to give a brief history of the case, and this, perhaps, can best be done by referring to plaintiff's said petition, which reads as follows:

"1. That an action was begun, as above entitled, by and in behalf of the plaintiff (whose name is now Idella Blackmon Warr), this petitioner, on the--day of October, 1930, for the purpose of recovering fifty thousand dollars damages for the unlawful, willful, wanton and malicious acts and assault of the defendant in and upon your petitioner.

"2. That the said action resulted in a verdict for the plaintiff in the sum of Five Thousand ($5000.00) Dollars, on November 3rd, 1932, and judgment was thereupon duly entered in favor of the plaintiff and against the defendant for said sum, with interest from the date of the verdict.

"3. That execution has been heretofore issued upon said judgment and the same has been returned unsatisfied and the defendant refuses to pay and satisfy the said judgment and the...

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1 practice notes
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...an order was granted by Judge Rice on the 12th of December, 1933, and on appeal this order was affirmed September 8, 1934. 173 S.C. 322, 175 S.E. 814. John K. Kirven, however, prior to the rendition of Judge Rice's decision, left the state, and since that time has remained in Georgia and Fl......
1 cases
  • Gardner v. Kirven, No. 14486.
    • United States
    • United States State Supreme Court of South Carolina
    • May 18, 1937
    ...an order was granted by Judge Rice on the 12th of December, 1933, and on appeal this order was affirmed September 8, 1934. 173 S.C. 322, 175 S.E. 814. John K. Kirven, however, prior to the rendition of Judge Rice's decision, left the state, and since that time has remained in Georgia and Fl......

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