Stanley v. Stanley

• Citation: 35 S.C. 584,35 S.C. 94,14 S.E. 675
• Parties: Stanley et al. v. Stanley et al.
• Decision Date: 30 November 1891
• Court: United States State Supreme Court of South Carolina

14 S.E. 675

35 S.C. 94

35 S.C. 584

Stanley et al.

v.Stanley et al.

Supreme Court of South Carolina.

Nov. 30, 1891.

Stat on Appeal by Administrator—Bond—Foreign Attachment—Judgment in Rem.

1. Code Civil Proc. § 352, provides that, where a judgment appealed from directs the sale of real property, execution shall not be stayed unless a written undertaking be executed by appellant with two sureties; and section 353 provides that the court below may, in its discretion, dispense with or limit the security when appellant is an executor, administrator, etc. Held, that where a decree of foreclosure of a mortgage was rendered against real and personal property, on which an administrator claimed a judgment lien, and made application for a stay of proceedings pending his appeal, the discretion mentioned in section 353 should not be exercised.

2. An action of "foreign attachment" against a non-resident who is not personally served, and who does not appear, is a proceeding in rem; and no execution can be issued for any balance unpaid after the attached property is exhausted.

3. In an action to foreclose a mortgage, where one of the defendants sets up a judgment against the mortgagor as a prior lien, it is proper to show from the record that the judgment, though personal in form, was rendered in an action of "foreign attachment" against the mortgagor, who was absent from the state, and was not personally served.

4. Where a judgment is rendered in rem, and the property attached is exhausted, a service of summons to renew, and an order of the court granting a renewal, do not make the judgment in personam.

Appeal from common pleas circuit court of Richland county; J. H. Hudson, Judge.

Action by John C. Stanley and others, executors, against James D. Stanley, Ellery M. Brayton, and Berry Mobley, as administrator. Judgment for plaintiffs. Berry Mobley, as administrator, appeals, and asks for a stay of execution pending the appeal. Affirmed.

W. D. Trantham and J. T. Hay, for ap-I pellant.

W. S. Monteitb, for respondents.

on motion fob stay.

Per Curiam. The plaintiffs, respondents, as executors of the last will and testament of William B. Stanley, deceased, brought this action to foreclose a mortgage of real estate and personal property. The circuit judge rendered a decree of foreclosure in favor of the plaintiffs. The defendant Berry Mobley, as administrator of Jesse B. Mobley, claiming to hold a judgment lien against said property, appealed; the circuit judge having decided that he held no such lien. Upon the hearing of the appeal in the supreme court the said administrator made application to the court for a stay of proceedings in the court below pending his appeal. Sections 352 and 353 of the Code of Civil Procedure are as follows: "Sec. 352. If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two sureties, to the effect that, during the possession of such property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that, if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. Sec. 353. Whenever the defendant executes the bond hereinbefore prescribed, or the appeal is perfected as provided by sections 346, 350, 351, and 352, it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein, but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from; and the court below may, in its discretion, dispense with or limit the security required by sections 346, 350, and 352 when the appellant is an executor, administrator, trustee, or other person acting in another's right, and may also limit such security to an amount not less than fifty thousand dollars in the cases mentioned in sections 350, 351, and 352, where it would otherwise, according to those sections, exceed that sum. " No such written undertaking was executed in this case. Section 352 is imperative, requiring a written undertaking to be executed on the part of the appellant. Section 353 authorizes the court, in its discretion, to dispense with or limit the security required by the preceding sections in certain cases; but the court does not consider the present case a proper one for the exercise of such discretion. The reasons for this conclusion will be made more fully to appear in the opinion to be filed hereafter.

on the merits.

(Feb. 24, 1892.)

McGowan, J. This was an action brought by the plaintiffs, as executors of William B. Stanley, deceased, to foreclose a mortgage upon the real and personal propery of James D. Stanley, upon which there remains due a balance of $3,000, with interest from date at 10 per centum per annum, amounting to about $4,200. The making, execution, and delivery of the note and mortgage, and its non-payment, are notdisputed. (Executed April 7, 1887.) The defendant Ellery M. Brayton answered, setting up another mortgage of the same property, junior to that of the plaintiffs, for $1,158.60, besides interest, given by the said James D. Stanley to the Loan & Exchange Bank of Columbia to secure the said Brayton as indorser for the said James D.Stanley; and he asked for the foreclosure, also, of said mortgage, in this proceeding. These securities were also admitted. The defendant Berry Mobley, as administrator of the estate of Jesse B. Mobley, answered, setting up a judgment against the said James D. Stanley, entered originally at Lancaster Court House, S. C, on February 22, 1869, in a case entitled Jesse B. Mobley v. James D. Stanley. The claim was that it was a valid judgment, with a lien reaching back to the time of its original entry, (February 22, 1809,) and therefore the oldest lien on all the property of the said James 1). Stanley covered by the aforesaid junior mortgages. The only real contest in the case arises out of this judgment and its alleged lien. The exemplification of the record of said judgment from Lancaster was offered in evidence, and the circuit judge states the facts as follows: "That in the year 1867, the said James D. Stanley being a non-resident of the state, and owning property in Lancaster and Kershaw counties, a suit was commenced against him in Lancaster county by writ' of foreign attachment; and upon that writ, declaration in foreigu attachment, so reciting, was duly filed April 17, 1867, and judgment was entered up February 22, 1869, and execution issued the same day, which was first lodged in the office of the sheriff of Lancaster, then withdrawn and lodged in the office of the sheriff of Kershaw, March 4, 1869, and the attached property sold thereunder, and the proceeds applied to the execution by the sheriff of Kershaw. That no further proceedings were taken thereunder until the year 1888. Meanwhile, in 1886, the defendant James D. Stanley became a resident of Richland county, S. C, acquired the property described in the proceedings, mortgaged the same in 1887...