Wood v. Milling

• Decision Date: 25 March 1890
• Citation: 10 S.E. 1081,32 S.C. 378
• Parties: Wood et al. v. Milling et al.
• Court: South Carolina Supreme Court

10 S.E. 1081

(32 S.C. 378)

Wood et al.

v.Milling et al.

Supreme Cowrt of South Carolina.

March 25, 1890.

Revival of Judgments.

Where defendant is summoned in proceedings to revive a judgment while it is still in force, the judgment may be revived, though at the date of the order of revival the 20 years within which such proceedings could he instituted has expired. Following Adams v. Bichardson, ante, 931.

Appeal from common pleas circuit court of Fairfield county; B. C. Pressley, Judge.

McDonald & Douglass, for appellants. Ragsdale & Ragsdale, for respondents.

McGowan, J. On February 18, 1869, the defendant H. J. F. W. Coleman confessed a judgment to his sister-in-law, Tempe Cock-erall, for $5,854. 07, for money of hers claimed to be in his hands. In October, 1871, Miss Tempe died, leaving a will, by which she gave her whole estate—including said judgment—to one Christopher C Coleman and his children, charging it, however, with the life support of the defendant Coleman, whom she appointed one of her executors, and he is now her only surviving executor. On September 11, 1888, the defendant Coleman, as executor, caused to be issued against himself individually a summons, in the form required by law, to revive the judgment. On the original summons to revive the judgment, then appears the following indorsement: "I hereby acknowledge service of copy of the within summons to renew the execution and revive the judgment in the case therein stated; and I hereby consent to the renewal of said execution, and the revival of said judgment, according to the force and effect of the former recovery; and I also acknowledge and admit that the amount thereon stated to be due on said judgment is true and correct. September 11, 1888. Witness C. A. Douglass. [Signed] H. J. F. W. Coleman. " On September 21, 1888, Judge Wallace granted the following order: "On hearing the summons herein, and due proof of service thereon on the defendant, and affidavit of no answer, demurrer, or notice of appearance, on motion of McDonald and Douglass it is ordered that the said judgment be renewed and revived according to the force and effect of the former recovery, and that the said execution thereon be renewed and revived. It is further ordered that the said judgment set out in the body of said summons be and shall constitute a lien upon the property of the defendant and judgment debtor for the amount alleged in said summons to be due. " In the mean time, in February, 1884, the plaintiffs, Wood & Boulware, also recovered a judgment against the defendant Coleman, and had the land of Coleman, the defendant in execution, sold by Milling, the sheriff, on sales-day of May, 1889. It brought $706, and the plaintiffs, claiming that theirs was the only legal and valid judgment against the said Coleman, and the only subsisting lien upon the land, demanded that the proceeds of sale should be applied to their judgment. The sheriff refused to make that application, upon the ground that there was in his office an older judgment, viz., that of the estate of Tempe Cockerall; and thereupon the plaintiffs brought their action for the money against the sheriff, and Coleman, the defendant in execution, was afterwards made a party defendant. The question was, which judgment, under the facts and the law, had priority. Judge Pressley held that the judgment of the plaintiffs had priority over that of Tempe Cockerell, saying: "At the time of the levy of the plaintiff's execution, more than twenty years had elapsed since the confession and en try of the judgment in favor of said Tempe Cockerall, deceased, against the defendant Coleman; and no note of any payment or acknowledgement of the debt having been indorsed on the record of the said judgment, until after the full lapse of twenty years, it was presumed to be paid: The act of 1879 (section 1831, Gen. St.) applies to this judgment. ¹ As it simply changes the rules of evidence, and does not in any wise divest vested rights, I hold that it is not unconstitutional. The plaintiffs contest this judgment on other grounds, that it is not necessary to consider, " etc. From this decree the defendant Coleman appeals to this court on the following grounds: "(1) For that his honor erred in holding that the act of 1879 (Gen. St. § 1831) was...