Garrison v. Owens, 19425
| Decision Date | 24 May 1972 |
| Docket Number | No. 19425,19425 |
| Citation | 189 S.E.2d 31,258 S.C. 442 |
| Court | South Carolina Supreme Court |
| Parties | Ogetta A. GARRISON, Appellant, v. Lillie R. OWENS and United States of American, Respondents. |
Charles Welborn, of Welborn & Ferrene, Anderson, for appellant.
John C. Pracht, Jr., Anderson, for respondents.
Booker T. Garrison, on August 20, 1960, obtained a default judgment against Lillie R. Owens, a respondent herein, and Tony Owens, her husband. At the time the judgment was obtained, Lillie R. Owens and Tony Owens jointly owned and possessed a tract of land containing 172 acres, more or less, such being subject to a mortgage indebtedness in favor of the Farmers Home Administration. It appears that Tony Owens, on June 24, 1964, conveyed his undivided interest in said land to Lillie R. Owens, thus making the respondent the owner of the full fee simple title thereto.
Booker T. Garrison assigned the judgment he held against Tony and Lillie R. Owens to his wife, Ogetta A. Garrison, the appellant herein, on March 30, 1970, and she commenced this equitable action on June 24, 1970, against the respondent for the purpose of subjecting the real estate owned by her to the payment of the aforesaid judgment.
The respondent made a motion to dismiss the complaint of the appellant upon the ground that she did not, prior to the commencement of the action, comply with Section 10--1520 of the Code, which provides:
'No action shall be brought upon a judgment rendered in any court in this State, except the court of a magistrate, between the same parties without leave of the court, or a judge thereof at chambers, for good cause shown on notice to the adverse party. * * *'
The motion to dismiss the complaint came on to be heard by The Honorable William L. Rhodes, presiding judge, and by his Order of November 22, 1971, he held that the appellant had failed to comply with Section 10--1520 of the Code and dismissed the action. He further held that under Section 10--1561 of the Code, that a lien of a judgment continues for a period of ten years from the time of the filing of such judgment and the lien thereof is not saved or extended by the bringing of an action to enforce such and that a lien which expired during the pendency of the action cannot be enforced.
The appellant prosecutes this appeal and seeks a reversal of the rulings made by the trial judge.
The appellant contends that her complaint contains more than one cause of action and is not one brought upon her judgment. After a careful consideration of the complaint, it seems to us irrespective of this characterization which appellant seeks to apply to the nature of her cause of action, its very essence partakes of an action upon her judgment. It has for its purpose the collection by her of an assigned judgment and hence is an action upon a judgment, which was admittedly brought without leave of the court first obtained.
This action being considered as one upon a judgment, then it necessarily follows that the appellant at the time of the commencement thereof had no complete cause of action, because leave of the court to bring such action was not obtained before its institution. We have held in several cases that the obtaining of leave to bring an action upon a judgment constituted a prerequisite to the court's jurisdiction, and no right of action could accrue until such leave was obtained. American Agricultural Chem. Co. v. Thomas, 206 S.C. 355, 34 S.E.2d 592; United States Rubber Co. v. McManus, 211 S.C. 342, 45 S.E.2d 335 and Hardee v. Lynch, 212 S.C. 6, 46 S.E.2d 179. It follows that the trial judge was correct in dismissing the action because of the failure of the appellant to comply with Section 10--1520 of the Code.
The appellant contends that Section...
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Haynsworth Sinkler Boyd, P.A. v. Holmes (In re Holmes), C/A No. 19-01644-DD
...such time expires before the action is tried. Gordon , 823 S.E.2d at 176 (internal quotation marks omitted) (citing Garrison v. Owens , 258 S.C. 442, 189 S.E.2d 31, 33 (1972) ). Therefore, as Defendant argues, § 15-39-30 sets a fixed time period during which a creditor may execute on a judg......
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The Linda Mc Co. Inc v. Shore
...filing an action preserves lien even though statutory period expires while the matter is pending). ButseeGarrison v. Owens, 258 S.C. 442, 446-47, 189 S.E.2d 31, 33 (1972) ("A judgment lien is purely statutory, its duration as fixed by the legislature may not be prolonged by the courts and t......
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Commercial Credit Loans, Inc. v. Riddle
...and recover assets was continuous from the time judgment was entered until it expired ten years later); see also Garrison v. Owens, 258 S.C. 442, 446-7, 189 S.E.2d 31, 33 (1972) ("A judgment lien is purely statutory, its duration as fixed by the legislature may not be prolonged by the court......
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Beltram v. South Carolina Department of Revenue
...to Beltram. [4] Linda Mc Co. was overruled by Gordon, wherein the supreme court reinstated the rule for judgment liens as found in Garrison. Gordon, S.C. at 390-93, 823 S.E.2d at 175-76. [5] Because the parties' attorney's fees/sanction issues are substantially similar and relate to the sam......