Farmers' & Merchants' Bank v. Holliday
Decision Date | 24 July 1917 |
Docket Number | 9781. |
Citation | 93 S.E. 333,108 S.C. 116 |
Parties | FARMERS' & MERCHANTS' BANK v. HOLLIDAY ET AL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Marion County; Thos. S Sease, Judge.
Action by the Farmers' & Merchants' Bank against J. G Holliday and others. From a judgment, the People's Bank appeals. Affirmed.
Willcox & Willcox, of Florence, for appellant.
M. C Woods and W. F. Stackhouse, both of Marion, for respondent.
The appellant thus states its case:
I. The first exception complains of error in allowing plaintiff's attorney a fee of $500. The record does not show that this was error. The mere fact that the judgment of foreclosure was consented to does not show it. Sometimes much work and considerable skill is required to secure a consent decree.
This exception is overruled.
II. The appellant states his second question as follows:
There are two sections of the Code of Civil Procedure that are involved in this case. Section 341, that the transcript when so docketed "shall have the same force and effect as a judgment of that court." Section 348 provides that the transcript, "when so filed, shall constitute a lien on the real property of the judgment debtor in that county."
Appellant claims that, while the general effect dates from filing, yet the specific effect, to wit, the creation of a lien on land, dates from the filing. Appellant claims that the statute is clear, and whatever the court may think of the justice of allowing its judgment filed on the 2d of June to take precedence, and the whole surplus of the Dillon real estate, still the law is plain, and the only way to escape it is by judicial legislation. The appellant stands on the letter of the statute, and by that letter its priority is slain. The last clause of subdivision 1 of section 348 is:
"Provided further, that all such verdicts and orders rendered and issued at the same term of court shall have no priority one over another, notwithstanding they may be rendered and issued on different days of said court."
The judgments were obtained in Marion county on the 2d of June. The transcripts were issued on the 2d of June. One was sent by hand, and the messenger called the deputy clerk to the office after hours to have it filed. The other was sent by mail and was filed on the 3d of June. Both were docketed on the 3d of June, but the one has no priority over the other by the letter of the statute.
This exception is overruled.
III. The third question is:
There were two funds, and the liens on the two were not the same. There was no other way but to divide the money into two funds and apply the two fund doctrine. This would not prevent those who nold judgments in Dillon and Marion from prorating for the balance in Marion county.
The exceptions are overruled, and the judgment affirmed.
I concur in affirming the judgment, but I do not concur in the reasons for overruling the second and third grounds of appeal. Subdivision 1 of section 348 of the Code of Procedure reads:
"Final judgments entered in any court of record in this state, subsequent to the 25th day of November, A. D. 1873, shall constitute a lien upon the real estate of the judgment debtor in the county where the same is entered for a period of...
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