Smith v. Ellison

Supreme Court of South Carolina

Smith v. Ellison

58 S.E. 966, 78 S.C. 120, 1907 S.C. LEXIS 224

CourtSupreme Court of South Carolina

DecidedSeptember 10, 1907

Docket6648

StatusPublished

This text of 58 S.E. 966 (Smith v. Ellison) 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

Smith v. Ellison, 58 S.E. 966, 78 S.C. 120, 1907 S.C. LEXIS 224 (S.C. 1907).

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Opinions

The opinion of the Court was delivered by

Mr. Chief Justice Pope.

This was a summons issued on December 23d, 1906, by the plaintiff, John A. Smith, executor of H. Glenn Smith, to the defendants, James M. Ellison and Martha J. Ellison, requiring them to show cause, if any they could, why a judgment entered up against them on the 27th day of September, 1890, should not be revived. The return and answer of the defendants denies that any judgment was ever lawfully entered against them, and alleges that if it has, as is alleged in the summons, the time within which the same could have been revived has long since expired. Judge Ernest Gary, in ap order of March *121 5th, 1907, ordered the judgment revived. Defendants appeal.

Section 309 of the Code of Procedure of 1902 provides: “A final judgment may be revived at any time within the period of ten years from date of original entry thereof by the service of a summons upon the judgment debtor * * * to show cause, if any he may have, why such judgment should not be revived; and if no good cause be shown to the contrary, it shall be decreed that such judgment is revived.”

The meaning of the term “date of the original entry” is too plain to require a consideration of its meaning. A period of ten years following, can mean nothing but the succeeding ten years following the original entry. The words of the statute are plain, that a summons to revive must be issued within this period, otherwise the privilege of renewal will be denied. The revival thus obtained will give life to the judgment for ten years following the ten year period from the date of the original entry of the judgment, thus making a period of twenty years, the entire time a judgment is allowed to constitute a lien on property. This statute is then one of limitation, and according to well settled authority, must be pleaded.

This is the ground on which the respondent seeks to have the judgment sustained. He would show that appellants have not properly pleaded the statute. This contention, however, we cannot sustain. The plaintiff, in his summons, stated the fact that the judgment was entered in September, 1890. The revival proceedings were not begun until December, 1906. The defendants denied the judgment, but contended that should the judgment be held valid, as is alleged in the summons, that then according to the face of the summons itself and the facts set forth thereon, the revival was barred by the statute. The facts of the case are really in issue, thus distinguishing this case from those relied upon by the respondent where the defendant claimed the benefit of the statute without stating any grounds upon which to *122 base his claim. In this view we think the pleadings are sufficient.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.

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The opinion of the Court was delivered by

Mr. Chief Justice Pope.

This was a summons issued on December 23d, 1906, by the plaintiff, John A. Smith, executor of H. Glenn Smith, to the defendants, James M. Ellison and Martha J. Ellison, requiring them to show cause, if any they could, why a judgment entered up against them on the 27th day of September, 1890, should not be revived. The return and answer of the defendants denies that any judgment was ever lawfully entered against them, and alleges that if it has, as is alleged in the summons, the time within which the same could have been revived has long since expired. Judge Ernest Gary, in ap order of March *121 5th, 1907, ordered the judgment revived. Defendants appeal.

Section 309 of the Code of Procedure of 1902 provides: “A final judgment may be revived at any time within the period of ten years from date of original entry thereof by the service of a summons upon the judgment debtor * * * to show cause, if any he may have, why such judgment should not be revived; and if no good cause be shown to the contrary, it shall be decreed that such judgment is revived.”

The meaning of the term “date of the original entry” is too plain to require a consideration of its meaning. A period of ten years following, can mean nothing but the succeeding ten years following the original entry. The words of the statute are plain, that a summons to revive must be issued within this period, otherwise the privilege of renewal will be denied. The revival thus obtained will give life to the judgment for ten years following the ten year period from the date of the original entry of the judgment, thus making a period of twenty years, the entire time a judgment is allowed to constitute a lien on property. This statute is then one of limitation, and according to well settled authority, must be pleaded.

This is the ground on which the respondent seeks to have the judgment sustained. He would show that appellants have not properly pleaded the statute. This contention, however, we cannot sustain. The plaintiff, in his summons, stated the fact that the judgment was entered in September, 1890. The revival proceedings were not begun until December, 1906. The defendants denied the judgment, but contended that should the judgment be held valid, as is alleged in the summons, that then according to the face of the summons itself and the facts set forth thereon, the revival was barred by the statute. The facts of the case are really in issue, thus distinguishing this case from those relied upon by the respondent where the defendant claimed the benefit of the statute without stating any grounds upon which to *122 base his claim. In this view we think the pleadings are sufficient.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.

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58 S.E. 966, 78 S.C. 120, 1907 S.C. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-ellison-sc-1907.

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