The opinion of the Court was delivered by
Mr. Justice Pope.
On the 7th day of February, 1898, the plaintiff gave written notice to the defendant that she would, on the 23d day of February, 1898, move before his Honor, D. A. Townsend, as presiding Judge, at Lexington, S. C., or as soon thereafter as 'counsel can be heard, for leave to issue an execution upon the judgment obtained by her against the defendants in the trial justice court of Trial Justice J. W. Swedenburg, of Lexington County, S. C., which had by transcript thereof been lodged in the office of the
clerk of the Court of Common Pleas for said county of Lexington, and that said judgment now constitutes judgment roll No. 848 of said Court of Common Pleas, no part of which judgment had been paid, and that she would also move before Judge Townsend, at the time and place aforesaid, 'to have the Court certify on said execution, or direct the clerk of said Court to so certify on said execution, that plaintiff’s judgment was obtained on a debt contracted for the purchase money of a tract of land containing sixty-four acres, more or less, now owned and resided upon in Lexington County, S. C., by the said Simon Amick, and adjoins the lands of the defendant, Henry D. Taylor, Perry Low-man and perhaps others. On the 7th day of October, 1897 (meaning 1898), a consent order was passed appointing H. A. Spann, Esq., special referee to take the testimony of the witnesses and report to the Court. The testimony was practically the same as is covered by the affidavit of Oma S. Amick, which affidavit is as follows: “Personally appeared before me Oma Salenda Amick, who, being duly sworn, says: that she obtained a judgment in the above entitled action before Trial Justice J. W. Swedenburg, of Lexington County, on the 20th day of February, 1889, for the sum of $90.01, including $6 costs; that a transcript of said judgment was duly lodged in the office of the clerk of the Court of Common Pleas of Lexington County, on the 17th day of May, 1889, and was duly docketed in the office of the clerk of 'the Court of said county, which said judgment now constitutes judgment roll No. 848 of the Court of Common Pleas of Lexington County, S. C. That no part of said judgment has been paid, and no execution has ever been issued upon said judgment by the clerk of the Court of said county. That said judgment remains wholly unpaid; that the deponent is now the lawful owner and holder of said judgment; that the debt upon which said judgment was obtained was for the purchase money of the tract of land on which the defendant, Simon Amick, now resides, which tract of land is situated in Lexington County, adjoining lands of
the defendant, Henry D. Taylor, Perry bowman and perhaps others, and contains about sixty-four acres, more or less. That deponent is desirous of having an execution issued upon said judgment against said defendants, Simon Amick and Henry D. Taylor, according to law, and that this Court do certify on said execution, or direct the clerk of this Court to certify, that said judgment was obtained on a debt contracted for the purchase money of said tract of land, and that said judgment is for the purchase money of said premises. Wherefore, this plaintiff asks that an execution upon said judgment may be issued against said defendants, and that this Court may direct the clerk of this Court to certify thaJt said judgment was for the purchase money of said tract of land.” Plaintiff further stated that she loaned the money for which the note sued to judgment was given to Simon Amick, to pay on the purchase money of the tract of land on which he lived, and which he had bought from Henry D. Taylor, and that she carried Amick the money and saw him pay it to Taylor. Judgment roll 848 offered in evidence. Defendant, Plenry D. Taylor, examined as a witness for plaintiff, testified: “Know that plaintiff loaned money to defendant, Simon Amick, to pay on land which he lives on. I sold the land to Amick. Amick said he could get it from his sister, and wanted me to sign his note for it. She let him have the money and he paid it to me on the land. I signed Amick’s note for the money. It is a fact that there was a renewal note for the first one, and the judgment was obtained on renewal note.” E. E. Amick, sworn for defendant, Simon Amick: “I wrote note for plaintiff a good many years ag-o (paper handed witness). That was the note. Defendant signed i't and I gave it to plaintiff.”
Judge James Aldrich heard the cause and made this decree : “This matter comes before me on notice of motion for leave to issue an execution on a judgment obtained in the trial justice court on the 20th day of February, 1889. It appears that the motion was not tried on the affidavits, but a reference was ordered to take the testimony, and the matter
now comes up before me on the notice and testimony taken before the referee. At the hearing the defendant’s counsel make the point that if the notice and motion were to be construed into a proceeding to revive the judgment, he desired to interpose the objection that it was not in proper form, but should have been commenced by summons, as required by sub. 2 of sec. 309 of the Code. After full argument, I conclude that there are three grounds upon which the proceeding should be dismissed. First. I know of no such proceeding under die present law as leave to issue execution before or after the active energy of the judgment has expired. Second. Under the present law, there is no such proceeding as leave of the Court to issue an execution, because that can be done so long as the active energy of the judgment exists, as a matter of course. Then this proceeding must be considered as one to revive a judgment, and that can only be done by summons, as prescribed in sub. 2, sec. 309, of the Code. Third. It appears from the evidence that the plaintiff was not the vendor of the land to the defendant, Amick, now owned by him, but that she loaned him the money for which this judgment was obtained, which money he paid upon the purchase money of‘the land upon which he now lives. I am, therefore, of opinion that this is not such a debt as is protected by the proviso to the homestead provisions, and that plaintiff is not entitled to the certificate a-slced for. It is, therefore, ordered and adjudged, that the motion be dismissed.”
And from this decree the plaintiff appeals upon the following grounds: “1. For -that his Honor erred in holding that T know of no such proceeding under the present law as leave to issue execution before or after the active energy of the judgment has expired.’ 2. For that his Honor erred in holding that ‘under the present law there is no such proceeding as leave of the Court to issue an execution, because that can be done so long as the active energy of the judgment exists, as a matter of course. Then this proceeding must be considered as one to revive a judgment, and that can only
be done by summons, as> prescribed in sub. 2, sec. 309, of the Code.’ 3. For that his Honor erred in not holding that this was an application for leave to issue an execution upon a judgment which had been obtained before a trial justice, and docketed in the office of the clerk of Circuit Court of Lexington County, pursuant to the provisions of section 310 of the Code, as was manifest from the notice and affidavits of plaintiff and J. H. Amick, which were attached to the notice. 4.
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The opinion of the Court was delivered by
Mr. Justice Pope.
On the 7th day of February, 1898, the plaintiff gave written notice to the defendant that she would, on the 23d day of February, 1898, move before his Honor, D. A. Townsend, as presiding Judge, at Lexington, S. C., or as soon thereafter as 'counsel can be heard, for leave to issue an execution upon the judgment obtained by her against the defendants in the trial justice court of Trial Justice J. W. Swedenburg, of Lexington County, S. C., which had by transcript thereof been lodged in the office of the
clerk of the Court of Common Pleas for said county of Lexington, and that said judgment now constitutes judgment roll No. 848 of said Court of Common Pleas, no part of which judgment had been paid, and that she would also move before Judge Townsend, at the time and place aforesaid, 'to have the Court certify on said execution, or direct the clerk of said Court to so certify on said execution, that plaintiff’s judgment was obtained on a debt contracted for the purchase money of a tract of land containing sixty-four acres, more or less, now owned and resided upon in Lexington County, S. C., by the said Simon Amick, and adjoins the lands of the defendant, Henry D. Taylor, Perry Low-man and perhaps others. On the 7th day of October, 1897 (meaning 1898), a consent order was passed appointing H. A. Spann, Esq., special referee to take the testimony of the witnesses and report to the Court. The testimony was practically the same as is covered by the affidavit of Oma S. Amick, which affidavit is as follows: “Personally appeared before me Oma Salenda Amick, who, being duly sworn, says: that she obtained a judgment in the above entitled action before Trial Justice J. W. Swedenburg, of Lexington County, on the 20th day of February, 1889, for the sum of $90.01, including $6 costs; that a transcript of said judgment was duly lodged in the office of the clerk of the Court of Common Pleas of Lexington County, on the 17th day of May, 1889, and was duly docketed in the office of the clerk of 'the Court of said county, which said judgment now constitutes judgment roll No. 848 of the Court of Common Pleas of Lexington County, S. C. That no part of said judgment has been paid, and no execution has ever been issued upon said judgment by the clerk of the Court of said county. That said judgment remains wholly unpaid; that the deponent is now the lawful owner and holder of said judgment; that the debt upon which said judgment was obtained was for the purchase money of the tract of land on which the defendant, Simon Amick, now resides, which tract of land is situated in Lexington County, adjoining lands of
the defendant, Henry D. Taylor, Perry bowman and perhaps others, and contains about sixty-four acres, more or less. That deponent is desirous of having an execution issued upon said judgment against said defendants, Simon Amick and Henry D. Taylor, according to law, and that this Court do certify on said execution, or direct the clerk of this Court to certify, that said judgment was obtained on a debt contracted for the purchase money of said tract of land, and that said judgment is for the purchase money of said premises. Wherefore, this plaintiff asks that an execution upon said judgment may be issued against said defendants, and that this Court may direct the clerk of this Court to certify thaJt said judgment was for the purchase money of said tract of land.” Plaintiff further stated that she loaned the money for which the note sued to judgment was given to Simon Amick, to pay on the purchase money of the tract of land on which he lived, and which he had bought from Henry D. Taylor, and that she carried Amick the money and saw him pay it to Taylor. Judgment roll 848 offered in evidence. Defendant, Plenry D. Taylor, examined as a witness for plaintiff, testified: “Know that plaintiff loaned money to defendant, Simon Amick, to pay on land which he lives on. I sold the land to Amick. Amick said he could get it from his sister, and wanted me to sign his note for it. She let him have the money and he paid it to me on the land. I signed Amick’s note for the money. It is a fact that there was a renewal note for the first one, and the judgment was obtained on renewal note.” E. E. Amick, sworn for defendant, Simon Amick: “I wrote note for plaintiff a good many years ag-o (paper handed witness). That was the note. Defendant signed i't and I gave it to plaintiff.”
Judge James Aldrich heard the cause and made this decree : “This matter comes before me on notice of motion for leave to issue an execution on a judgment obtained in the trial justice court on the 20th day of February, 1889. It appears that the motion was not tried on the affidavits, but a reference was ordered to take the testimony, and the matter
now comes up before me on the notice and testimony taken before the referee. At the hearing the defendant’s counsel make the point that if the notice and motion were to be construed into a proceeding to revive the judgment, he desired to interpose the objection that it was not in proper form, but should have been commenced by summons, as required by sub. 2 of sec. 309 of the Code. After full argument, I conclude that there are three grounds upon which the proceeding should be dismissed. First. I know of no such proceeding under die present law as leave to issue execution before or after the active energy of the judgment has expired. Second. Under the present law, there is no such proceeding as leave of the Court to issue an execution, because that can be done so long as the active energy of the judgment exists, as a matter of course. Then this proceeding must be considered as one to revive a judgment, and that can only be done by summons, as prescribed in sub. 2, sec. 309, of the Code. Third. It appears from the evidence that the plaintiff was not the vendor of the land to the defendant, Amick, now owned by him, but that she loaned him the money for which this judgment was obtained, which money he paid upon the purchase money of‘the land upon which he now lives. I am, therefore, of opinion that this is not such a debt as is protected by the proviso to the homestead provisions, and that plaintiff is not entitled to the certificate a-slced for. It is, therefore, ordered and adjudged, that the motion be dismissed.”
And from this decree the plaintiff appeals upon the following grounds: “1. For -that his Honor erred in holding that T know of no such proceeding under the present law as leave to issue execution before or after the active energy of the judgment has expired.’ 2. For that his Honor erred in holding that ‘under the present law there is no such proceeding as leave of the Court to issue an execution, because that can be done so long as the active energy of the judgment exists, as a matter of course. Then this proceeding must be considered as one to revive a judgment, and that can only
be done by summons, as> prescribed in sub. 2, sec. 309, of the Code.’ 3. For that his Honor erred in not holding that this was an application for leave to issue an execution upon a judgment which had been obtained before a trial justice, and docketed in the office of the clerk of Circuit Court of Lexington County, pursuant to the provisions of section 310 of the Code, as was manifest from the notice and affidavits of plaintiff and J. H. Amick, which were attached to the notice. 4. For that his Honor erred in not holding that the original judgment having been obtained before a trial justice of Lexington County, and a transcript thereof having been docketed in the office of the clerk of the Court of Lexington County, and no execution having been issued thereon, that the application for leave to issue execution thereon must be to 'the Circuit Court of the county where the judgment was rendered, under section 310 of the Code, and it is respectfully submitted that his Honor erred as matter of law in refusing to grant plaintiff leave to issue execution under all the facts of the case. 5. For 'that his Honor erred in not holding that wihere a judgment was obtained before a trial justice or other inferior court, and docketed in the office of the clerk of Circuit Co’urt, that an execution could not be issued except by leave of the Circuit Court, as provided for in section 310 of the Code. 6. For that his Honor erred in holding: ‘It appears from the evidence that the plaintiff was not the vendor of the land to the defendant, Amick, now owned by him, but that she loaned him the money for which this judgment was obtained, which money he paid upon the purchase money of the land upon which he now lives. I am, therefore, of opinion that this is not such a debt as is protected by the proviso to the homestead provisions, and that plaintiff is not entitled to the certificate asked for.’ 7. For that his Honor erred in refusing to pass an order directing the clerk of the Court to certify on the execution to be issued in the case that the judgment in this case was obtained on a debt contracted for the purchase money of the tract of land described in the affidavit of plaintiff.”
1
It is well to 'bear in mind that the application of the plaintiff to the Circuit Court for the relief set out in the affidavit of plaintiff must be regarded as of 7th day of February, 1898. On the 17th day of May, 1889, her judgment was docketed and enrolled in the office of the clerk of the Court of Common Pleas for Lexington County. So that when the plaintiff applied for the relief, we are now to consider her judgment was eight years, eight months and twenty days old. In other words, the ten years referred to in our act of the General Assembly during which judgments obtained after the year 1873 had a lien, and needed no renewal in order to give vitality to an execution issued for their enforcement, had not expired. The question suggested by the first exception naturally presents itself, namely, in judgments transcripted to the office of the clerk of Circuit Court from a trial justice court, can execution issue without leave of Court? Certainly, section 310 of our Code seems not to regard it legal to issue executions on such judgments without leave of Court first had, for it expressly provides: “Section 310 * * * when judgments shall have been rendered in a court of trial justice or other inferior court, and docketed in the office of the clerk of the Circuit Court, the application for leave to issue execution must be to the Circuit Court of the county where the judgment was rendered.” This requirement of law seems natural and proper when trial justice judgments are docketed in the clerk’s office of the Circuit Court, who is purely a ministerial officer, except in a few cases, to enable an execution on such judgment to issue and be attested by said clerk, the direction of a Circuit Judge is proper. So, therefore, I think the Circuit Judge was in error, as is pointed out in exceptions 1, 2, 3, 4 and 5, and they are sustained.
Rhoad
v. Patrick, 37 S. C., 517.
2
The remaining exceptions cannot be sustained, for we agree with the Circuit Judge, that the plaintiff had no right to have indorsed upon her execution to be issued from the Court of Common Pleas that the debt sued on was
an obligation contracted for the purchase money of said homestead of the defendant, Simon Amick, for such was not the fact. The plaintiff, Amick, did not sell and convey the tract of land purchased by her brother, Simon Amick, but, on the contrary, his codefendant sold and conveyed said lands to Simon Amick. See
Calmes
v.
McCracken,
8 S. C., 87, Simply because Miss Orna S. Amick lent the money to her brother, Simon Amick, to pay H. D. Taylor for the land, does not make Simon’s note to her an obligation for the purchase money. This being so, of course, the Circuit Judge was correct in refusing such a certificate as Miss Amick sought to1 have indorsed on her execution.
Our judgment should be, in my opinion, as follows : “The judgment of the Circuit Court, where it denies to the appellant the right to have an execution bn her judgment issued by the clerk of the Circuit Court, must be reversed.” But since the whole Court agrees that wherein it adjudged that the plaintiff was not entitled to have the clerk of the Circuit Court place a certificate upon said execution, that the obligation upon which the judgment was obtained was for the purchase money of the tract of land owned by the defendant, Simon Amick, such judgment of the Circuit Court is affirmed.