Sullivan v. Shell
| Decision Date | 06 September 1892 |
| Parties | SULLIVAN v. SHELL. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Laurens county; HUDSON Judge.
Action by Hewlett Sullivan, continued in the name of J. P. and John H. Latimer, as his executors, against G. W. Shell, as clerk etc., to enjoin the enforcement of an execution and to cancel a judgment. From a judgment for plaintiff, defendant appeals. Reversed.
Featherstone & Son and Haskell & Dial, for appellant.
Irvine & Mooney, for respondent.
At the sale of the real estate of one M. A. Sullivan, under a bill to marshal the assets of his estate, the original plaintiff Hewlett Sullivan, bid off a tract of land, and, to secure the payment of the purchase money, executed his bond and mortgage on the same. This bond remaining unpaid, proceedings to foreclose the mortgage were instituted by the clerk of the court, who had succeeded to the possession of the bond and mortgage, and on the 21st of February, 1877, a judgment was rendered against said Hewlett Sullivan for upwards of $4,000 and for the foreclosure of the mortgage and a sale of the mortgaged premises. No sale, however, was ever made under this judgment, Hewlett Sullivan claiming to have made sundry payments thereon, sufficient, as he alleged, to satisfy the same, but no satisfaction was ever entered thereon. On the contrary, on the 17th of October, 1883, a summons to renew execution upon said judgment was served upon said Hewlett Sullivan, who handed it to his relative, J. D. Sullivan, with the request that he would deliver it to his attorneys, with instructions to plead payment of the judgment. The copy summons was not, however, delivered to said attorneys until 24 or 25 days after it had been served, but before the next succeeding term of the court. No answer or demurrer to said summons, and no notice of appearance, were ever given, and on the 2d of December, 1884, more than a year after the service of the summons, an order of court was granted, renewing said judgment, and granting leave to the present defendant, who had in the mean time succeeded to the office of clerk, to issue execution thereon. Accordingly, on the 12th of December, 1884, executions was issued for the balance claimed to be due, and on the 12th March, 1885, this execution was levied upon the lands of said Hewlett Sullivan. Whereupon this action was commenced on the 23d of March, 1885, for the purpose of enjoining the enforcement of said execution, and having said judgment canceled and marked satisfied. The case, being at issue, was referred to the master, who made his report, recommending that the relief prayed for in the complaint be granted. To this report the defendant filed the several exceptions set out in the case, which were sustained by the circuit judge, and judgment rendered granting the prayer of the complaint. From this judgment defendant appeals, upon the several grounds set out in the record.
Under the view which we take of this case, we do not deem it necessary to consider these grounds seriatim, for it seems to us that the recent case of Crocker v Allen, 13 S.E. Rep. 650, reported also in 34 S.C. 452, which has been recognized and affirmed in the still more recent case of Gillam v. Arnold, (S. C.) 14 S.E. Rep. 938, conclusively shows that the plaintiff is not entitled to maintain this action. If he ever had any remedy, it should have been sought by a motion in the cause in which the judgment complained of was rendered. But, even if he had resorted to that mode of relief, we do not see how he could have successfully met the plea of res adjudicata. When he was served with the summons to show cause why the judgment should not be revived and execution issued to enforce the same, he was afforded the opportunity to raise the very same questions which he now seeks to raise by this action, and this court has repeatedly decided that one who...
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