United States Rubber Co. v. McManus

• Decision Date: 26 November 1947
• Docket Number: 16014.
• Citation: 45 S.E.2d 335,211 S.C. 342
• Parties: UNITED STATES RUBBER CO. v. McMANUS.
• Court: South Carolina Supreme Court

45 S.E.2d 335

211 S.C. 342

UNITED STATES RUBBER CO. v. McMANUS.

No. 16014.

Supreme Court of South Carolina

November 26, 1947

Gregory & Gregory and John D. Wylie, all of Lancaster, for appellant.

Wendell M. Levi and Raymon Schwartz, both of Sumter, for respondent.

FISHBURNE, Justice.

This appeal is from a judgment of the circuit court permitting the respondent to bring an action against the appellant on a judgment less than twenty years old and more than ten years old. The judgment was rendered in favor of Fisk Tire Company against the appellant, John A. McManus, in the sum of $2605.15, and entered in the office of the clerk of court for Greenville County on November 12, 1932.

The respondent, United States Rubber Company, the assignee of the judgment served upon the appellant, now a resident of Lancaster County, notice that it would apply to the resident circuit judge for permission to institute an action against the appellant upon this judgment. The motion was duly heard and such leave was granted by order of date March 1, 1947. The order was based on Section 354, 1942 Code, which provides that 'no action shall be brought upon a judgment rendered in any court in this State * * * without leave of the court or a judge thereof, * * * for good cause shown, on notice to the adverse party * * *.'

Appellant resisted the motion upon the ground that the proposed action was barred by the statute of limitations; and barred by reason of Act No. 516 of the Acts of the General Assembly for the year 1946, 44 Stat. at Large, 1436, which radically changed the operation and effect of existing statutes governing limitation of actions on judgments.

Prior to the passage of the 1946 Act above referred to, the limitation for bringing an action on a judgment was twenty years, Section 387, subsection 1. Section 743, subsection 1 provided that judgments shall constitute a lien on the real estate of the judgment debtor for ten years from date of entry. And the procedure was set forth in subsection 2, 4, 5 6 and 7 of Section 743 as to how judgments could be renewed or revived within the period of ten years by the service of a summons upon the judgment debtor. Section 745 permitted an action on a judgment after the lapse of twenty years from the date of its entry.

By Act of the general assembly approved March 22, 1946, 44 Stat. at Large, 1436, the legislature repealed subsection 1 of Section 387, thus taking away the right to bring an action upon a judgment within twenty years. The Act likewise repealed subsections 2, 4, 5, 6 and 7 of Section 743 of the Code, which authorized the renewal or revival of judgments within the period of ten years, and also repealed Section 745 of the Code, which permitted an action upon a judgment after a lapse of twenty years from the date of the original entry thereof.

Section 4 of the 1946 Act provides:

'Actions to revive judgments.--That the repeal of the Sections provided for in this Act shall not be construed to affect any actions now pending to revive judgments which are less than ten years old, or any actions which may be instituted within twelve (12) months from the passage of this Act for the revival of judgments which are less than ten years old, and any judgments which may be revived as herein provided for shall constitute a lien for ten years from the date of the revival of said judgments. Provided, that after the expiration of twelve (12) months from the date of the approval of this Act, no action shall be brought for the revival or renewal of any judgment.'

And Section 5 provides:

'All Acts or parts of Acts inconsistent with this Act are hereby repealed.'

The circuit court held that the 1946 Act did not apply to the facts in this case under the authority of Section 355-1 which provides, 'The provisions of this title shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statutes then in force shall be applicable to such cases, according to the subject of the action and without regard to the form.'

In applying the foregoing statute, the court held that at the time of the passage of the 1946 Act, the respondent's right of action had already accrued, and that it had a vested property right in the judgment. In support of this conclusion the case of Glover v. Floyd, 76 S.C. 292, 57 S.E. 25, 27, was cited and relied upon. The case of Glover v. Floyd, supra, announced the generally recognized principle that, 'When a right of action or cause of action has accrued, that law is fixed; that no change of the statutes of limitations shall be wrought by any legislation afterwards fixing a different period.'

As an additional ground to sustain the order of the Circuit Court, the respondent contends that the 1946 Act is unconstitutional in that it violates the due process clauses of both the Federal and the State Constitutions, Fifth and Fourteenth Amendments to the United States Constitution; Art. I, Section 5 of the Constitution of South Carolina.

In our opinion, the lower court erred in holding that the respondent's cause of action had accrued at the date of the passage of the Act of 1946. The precise question was presented in the case of American Agricultural Chemical Co. v. Thomas, 206 S.C. 355, 34 S.E.2d 592, 594, 160 A.L.R. 594. The effort was made in that case under Section 354, to bring an action on a judgment which was more than ten years old but less than twenty, and it was there held that the cause of action had not matured, and could not accrue until after the circuit court had issued its order granting leave to bring the action. It will be borne in mind that when the 1946 Act was passed, repealing subsection 1 of Section 387 of the Code, no application had been made to the circuit court by the respondent for permission to bring an action upon its judgment. The motion was not made until one year thereafter, viz., March 1, 1947.

It was held in American Agricultural Chemical Co. v. Thomas, supra:

'The conditions precedent to maintaining an action on a judgment detailed in Section 354 operate on the right itself. Compliance with these conditions, specifically attached to the right, constitutes an essential element of the cause of action, and partakes of the subject-matter. It therefore follows that plaintiff's cause of action was not complete, and its right to sue did not accrue until the statutory requirements had been fully performed.'

The foregoing decision of the court does not in any sense run counter to the principle announced in Glover v Floyed, 76 S.C. 292, 57 S.E. 25, holding that when a right of action or cause of action has accrued the law is fixed, and no change of the statutes of limitations shall be wrought by any legislation afterwards fixing a different period. In the case now before us, it is clear that the respondent's cause of action at the date of the 1946 Act, had not accrued because at the time of such enactment it had not...