Fowke v. De Witt

Supreme Court of South Carolina

Fowke v. De Witt

88 S.E. 368, 104 S.C. 159, 1916 S.C. LEXIS 87

CourtSupreme Court of South Carolina

DecidedMarch 29, 1916

Docket9359

StatusPublished

This text of 88 S.E. 368 (Fowke v. De Witt) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fowke v. De Witt, 88 S.E. 368, 104 S.C. 159, 1916 S.C. LEXIS 87 (S.C. 1916).

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Opinion

The opinion of the Court, after reciting the foregoing statement of facts, was delivered by

Mr. Justice Fraser.

The case of Patterson v. Baxley, 33 S. C. 354, 11 S. E. 1065, is conclusive of this case against the appellant’s contention, and, unless that case is overruled, it governs here. In that case (pages 357 and 358, of 33 S. C., page 1066 of 11 S. E.) it is said:

“ Tt is further ordered that the complainant be at liberty at any time thereafter, when any such deficiency shall have becorrie due according to the bond, to apply to the Court for an execution against all the defendants to collect the amount which shall be due thereon.’ This was done precisely as directed, and the unpaid balance collected without objection out of the property of the surety, J. C. Holley, who is now endeavoring to revive the judgment against the principal defendants in order to reimburse himself the amount paid by him as surety. See FrCer v. Tupper, 21 S. C. 81.”

It appears in writing from the record in the sheriff’s office that “payments” were made to him officially on the judgment for the deficiency at three separate times, viz.: Janu *163 ary 20, 1870; October 3, 1870; and November 7, 1870. From this last payment to October 18, 1889, when the summons to renew was filed, was less than 20 years. We cannot doubt that the receipts in writing on the record are substantial compliance with the new rule of evidence created by the act of 1879, supra, which requires a note of some payment on account, or some written acknowledgment of the debt secured thereby, etc.

We think the summons to renew the execution was filed within time, within 20 years from the last “payment on account” in the record. This case decides the exact question before us and is conclusive of it.

The judgment is affirmed.

Mr. Chief Justice Gary and Messrs. Justices Hydrick and Gage concur in the opinion of the Court. Mr. Justice Watts dissents.

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The opinion of the Court, after reciting the foregoing statement of facts, was delivered by

Mr. Justice Fraser.

The case of Patterson v. Baxley, 33 S. C. 354, 11 S. E. 1065, is conclusive of this case against the appellant’s contention, and, unless that case is overruled, it governs here. In that case (pages 357 and 358, of 33 S. C., page 1066 of 11 S. E.) it is said:

“ Tt is further ordered that the complainant be at liberty at any time thereafter, when any such deficiency shall have becorrie due according to the bond, to apply to the Court for an execution against all the defendants to collect the amount which shall be due thereon.’ This was done precisely as directed, and the unpaid balance collected without objection out of the property of the surety, J. C. Holley, who is now endeavoring to revive the judgment against the principal defendants in order to reimburse himself the amount paid by him as surety. See FrCer v. Tupper, 21 S. C. 81.”

It appears in writing from the record in the sheriff’s office that “payments” were made to him officially on the judgment for the deficiency at three separate times, viz.: Janu *163 ary 20, 1870; October 3, 1870; and November 7, 1870. From this last payment to October 18, 1889, when the summons to renew was filed, was less than 20 years. We cannot doubt that the receipts in writing on the record are substantial compliance with the new rule of evidence created by the act of 1879, supra, which requires a note of some payment on account, or some written acknowledgment of the debt secured thereby, etc.

We think the summons to renew the execution was filed within time, within 20 years from the last “payment on account” in the record. This case decides the exact question before us and is conclusive of it.

The judgment is affirmed.

Mr. Chief Justice Gary and Messrs. Justices Hydrick and Gage concur in the opinion of the Court. Mr. Justice Watts dissents.

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Bluebook (online)

88 S.E. 368, 104 S.C. 159, 1916 S.C. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowke-v-de-witt-sc-1916.

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