Cher Aw & C. R. Co v. Marshall

• Decision Date: 13 November 1893
• Citation: 40 S.C. 59,18 S.E. 247
• Court: South Carolina Supreme Court
• Parties: CHER AW & C. R. CO. v. MARSHALL.

18 S.E. 247

40 S.C. 59

CHER AW & C. R. CO.

v.MARSHALL.

Supreme Court of South Carolina.

Nov. 13, 1893.

Judgment—Revivor—Construction op Statutes.

1. Act of 1873 gave a judgment lien for 10 years from the date of entry, and contained a provision (Code, § 310) "that plaintiff may at any time, in three years after its active energy has expired, revive the judgment by service of summons on the debtor as provided by law;" but such provision was omitted from the act of 1885, relating to the revival of judgments. Held, that a judgment entered in 1879 could be revived in 1891 under the provision of the act of 1873, as the act of 1885 was prospective in its operation.

2. Though the act of 1873 contains no express provision for the revival of a judgment against the executor of a deceased judgment debtor, the word "debtor, " in the phrase "by service of summons on the debtor, " includes the personal representative of a deceased judgment debtor.

3. The provision of the act of 1873 (Code, § 310) relating to the revival of judgments, and the provision of such act (Code, § 311) relating to the renewal of executions, are identical, except that section 311 substitutes "his heirs, executors, and administrators" for the phrase "as provided by law, " in section 310. Held, that the phrase "as provided by law" should be construed to provide for the revival of a judgment against the executor of a deceased judgment debtor, as the right to revive an execution necessarily involves the right to revive the judgment.

Appeal from common pleas circuit court of Lancaster county; W. H. Wallace, Judge.

Rule by the Cheraw & Chester Railroad Company, for James T. Marshall, as executor of John W. Marshall, deceased, to show cause why a judgment against deceased should not be revived. Rule dismissed. The judgment creditor appeals. Reversed.

R. E. & R. B. Allison, for appellant.

Jones & Williams, for respondent.

McGOWAN, J. it seems that the plaintiff company, on or about September 29, 1879, entered a judgment for $200 and costs against one John W. Marshall, who was then living, but departed this life April 16, 1887, leaving in full force a will, of which James T. Marshall qualified as executor; and afterwards, on December 10, 1891, the plaintiff company caused to be issued against James T. Marshall, as executor as aforesaid, a summons to show cause, if any he could, why the said "judgment should not be revived and renewed against him as the executor of the last will and testament of the said John W. Marshall, deceased, according to the form, force, and effect of the former recovery."

James T. Marshall, the executor, showed for cause, by written answer, as follows: "(1) That no such judgment as that described above was ever entered against the defendant as such executor. (2) That this is not the proper proceeding to procure the entry 'revival or renewal' of a judgment against the defendant as such executor, or against John W. Marshall, defendant's testator. (3) That, if it is sought herein to revive a judgment entered against John W. Marshall, defendant's testator, in favor of the Cheraw & Chester Railroad Company, on or about September 26, 1879, as described in the summons herein, then this defendant shows that such judgment was originally entered more than ten years previous to the service of the summons herein, and that the same cannot now be revived in this proceeding, or otherwise. (4) That the said judgment has been paid, " etc.

Upon the hearing, his honor, Judge Wallace, dismissed the rule, in the following order: "After hearing the return by the said executor, and it appearing that the said judgment debtor was dead at the time of the issuance of the summons herein, and after hearing argument of counsel, it is considered and adjudged by the court that there is no provision in the act of 1873 for service of summons to revive judgment on the executor of the judgment debtor; and it appearing that the said judgment was obtained on the 26th of September, 1879, and must be revived, if at all, under the act of 1873, therefore, on motion, it is ordered and adjudged that 'good cause' has been shown why said judgment should not be revived, and that said summons or rule be dismissed, " etc.

The plaintiff company appeals from this order, upon the following grounds: "First. Because the circuit judge, it is respectfully submitted, erred therein, in holding that there is no provision in the act of 1873 for service of summons to revive judgment on the executor of the judgment debtor. Second. Because he erred therein in ruling that said judgment, being obtained on September 26, 1879, must be revived, if at all, under the act of 1873, and that it cannot be revived thereunder. Third. Because he erred in not holding that said judgment, obtained at the time named, could be revived, under the act of 1873, by service of summons on James T. Marshall, as executor of the last will and testament of John W. Marshall, deceased, the said John W. being then dead. Fourth. Because he erred in holding that there was no law for the revival of a judgment recovered at the time mentioned, except the act of 1873, and that this act was defective, in that it contained no provision for the service of a summons to revive on the...