Hardee v. Lynch

• Decision Date: 16 January 1948
• Docket Number: 16032.
• Parties: HARDEE v. LYNCH.
• Court: South Carolina Supreme Court

46 S.E.2d 179

212 S.C. 6

HARDEE v. LYNCH.

No. 16032.

Supreme Court of South Carolina

January 16, 1948

Henry E. Davis, of Florence, for appellant.

Willcox, Hardee, Houck & Palmer, of Florence, for respondent.

FISHBURNE, Justice.

This suit, on the equity side of the court, was brought by the plaintiff as surviving partner of the law partnership of Willcox & Hardee, to enforce the collection of an unrevived domestic judgment in the principal sum of $1,500 with interest.

On December 6, 1927, Essie B. Lynch recovered a judgment against her husband, W. S. Lynch, Sr., in an alimony proceeding, and assigned that portion of the judgment herein sued upon to Messrs. Willcox & Hardee, as attorneys' fees allowed them in the proceeding. The assignment was duly executed on May 11, 1931. W. S. Lynch, Sr., the judgment debtor, died on December 21, 1945, leaving of force his last will and testament, wherein he appointed the defendant, W. S. Lynch Jr., as his sole executor, who qualified and is now serving in that capacity.

It is alleged in the complaint that no part of the judgment has been paid, and that the plaintiff filed claim with the executor for the amount of the judgment with interest from December 6, 1927 at the rate of six per cent. per annum, and that the executor refused payment. It is further alleged that the estate is entirely solvent; that the assets, real and personal, are in the hands and under the control of the defendant executor, and are more than sufficient to pay the claim of the plaintiff. The relief prayed for is that the defendant be required to allow and pay the claim, and if the personal property has been dissipated or disposed of, that a judgment and decree be entered directing the sale of sufficient of the real estate of the deceased judgment debtor to pay the same; and for such other and further relief as may be just.

The defendant answered by general denial, and set up two defenses: (1) That W. S. Lynch, Sr., having gone into bankruptcy, with the obligation before mentioned listed as a debt, and having obtained a discharge on June 26, 1944, the judgment on which the present cause of action is based, was discharged; and (2) that the judgment forming the basis of the cause of action set up in the complaint being a personal claim, it expired with the death of October 8, 1941, of Essie B. Lynch, the original judgment creditor.

There being no disputed issues of fact, the case was heard before the county judge on the pleadings and certain formal documents. This hearing took place sometime in June, 1947 after the case had been pending for about one year. Before a decree was rendered, however, the defendant served notice of a motion for judgment in his favor on the ground that the proceeding instituted by the plaintiff was to collect an unrevived judgment dated December 6, 1927, and under the Act of the General Assembly approved March 22, 1946, 44 Stats page 1436, the court lacked jurisdiction of an action based on such a demand; and further by reason of the same Act the plaintiff failed to state any cause of action.

The matter was fully heard before the county judge, who rendered his decree on August 6, 1947, in which he decided all issues in favor of the plaintiff, and adjudged that the claim filed by the plaintiff was a valid and existing obligation of the estate of W. S. Lynch, deceased. The defendant, as executor of his estate, was directed to allow and pay the claim, which with interest was fixed by the court in the sum of $3,175.50. The court further ordered that judgment be entered for this amount in favor of the plaintiff, with leave to apply for such other and further orders as might be necessary to carry the decree into effect.

The county court overruled the defendant's motion for judgment which was based upon the 1946 Act, 44 Stats.1436, repealing the twenty year statute of limitations Code, Sec. 387, Subsection 1, on the ground that he had failed to plead the statute by way of answer as a bar to the action, and had thereby waived it. He also held that the statute was unconstitutional as cutting off plaintiff's existing right to the relief sought in the proceeding, and that neither the bankruptcy proceeding nor the death of Mrs. Lynch affected plaintiff's right to recover.

The case is now before us on several exceptions to the judgment of the lower court.

The appellant contends that, in effect, the action is upon the judgment rendered on December 6, 1927, and that this judgment is the basis of respondent's cause of action. Respondent, however, disclaims any such purpose or intent. He asserts that the suit brought by him does not seek to revive the original judgment assigned to his law firm by Essie B. Lynch, or to obtain another money judgment thereon. He takes the position that the action is an equitable one, to obtain the aid of the court of equity in requiring assets in the hands of the defendant executor to be applied in satisfaction of his judgment. It is argued that the action was not brought under any of the sections of the Code repealed by the 1946 Act hereinbefore referred to, and that none of these sections of the Code have any relation to the proceeding.

As previously stated, the judgment which the respondent seeks to collect, was rendered on December 6, 1927; its lien under the ten year statute, Code, Section 743, subsection 1, therefore expired December 6, 1937. This action was brought on July 26, 1946, so that the judgment had about a year and a half to run--that is, until December 6, 1947, before the twenty year statute applied, Section 387, Subsection 1. So far as the record shows, no execution was ever issued on the judgment within the ten year period, nor were any steps taken to revive it, hence it became dormant. Nor was the action authorized by leave of the court or a judge thereof as required by Section 354 of the Code, where the action is upon a judgment.

If the proceeding brought by the respondent be considered an action upon a judgment, then it necessarily follows that respondent at the time of its commencement 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 two recent cases, American Agr. Chem. Co. v. Thomas, 206 S.C. 355, 34 S.E.2d 592, 160 A.L.R. 594, and United States Rubber Co. v. McManus, S.C., 45 S.E.2d 335, that the obtaining of leave to bring an action upon a judgment constituted a prerequisite to the court's jurisdiction, and that no right of action could accrue until such leave was obtained. In the last-mentioned case--United States Rubber Co. v. McManus--the court dealt fully with the effect and operation of the 1946 Act upon existing statutes governing limitations of actions on judgments.

While the respondent contends that the action was brought solely for such relief as might be obtained in a court of equity, and disclaims that this is an action upon a judgment; or that he seeks another judgment based upon the judgment set forth in his complaint, yet, by reference to the decree of the county court, it is clear that the main relief awarded him was a money judgment, which could only have been based upon the judgment set up in the complaint. The judgment of the lower court specifically provided that the respondent have leave to enter up judgment for the sum of $3,175.50, with interest at the rate of six per cent. per annum from July 18, 1946, until paid. It was further held that the judgment constituted a valid and existing obligation of the judgment debtor, W. S. Lynch, Sr., deceased, and his executor was directed to pay it.

After a careful consideration...