Chester &c. R. R. v. Marshall , 40 S.C. 59 ( 1893 )

The opinion of the court was delivered by

Mr. Justice McGowaN.

It seems that the plaintiff company, on or about September 29, 1879, entered a judgment for $200 and costs against one John W. Marshall, who was then living; but he departed this life April 16,1887, leaving in full force a will, of which James T. Marshall qualified as executor; and afterwards, on December 10, 1891, the plaintiff company caused to be issued against James T. Marshall, as executor as aforesaid, a summons to show cause, if any he could, why the said “judgment should not be revived and renewed against him as the executor of the last will and testament of the said John W. Marshall, deceased, according to the form, force, and effect of the former recovery.” James T. Marshall, the executor, showed for cause by written answer as follows: “(1) That no such judgment as that described above was ever entered against the defendant as such executor. (2) That this is not the proper proceeding to procure the entry, revival or renewal of a judgment against the defendant as such executor, or against John W. Marshall, defendant’s testator. (3) That if it is sought herein to revive a judgment entered against John W. Marshall, defendant’s testator, in favor of the Oheraw and Chester Railroad Company, on or about September 26, 1879, as described in the summons herein, then this defendant shows that such judgment was originally entered more than ten years previous to the service of the summons herein, and that the same can not now be revived in this proceeding or otherwise. (4) That the said judgment has been paid,” &c.

Upon the hearing, his honor, Judge Wallace, dismissed the rule in the following order: “After hearing the return by the said executor, and it appearing that the said judgment debtor was dead at the time of the issuance of the summons herein, and after hearing argument of counsel, it is considered and adjudged by the court, that there is no provision in the act of 1873 for service of summons to revive judgment on the executor of the judgment debtor; and it appearing that the said judgment was obtained on the 26th of September, 1879, and must be revived, if at all, under the act of 1873; therefore, on motion, it is ordered and adjudged, that good cause has been shown why said judgment should not be revived, and that said summons or rule be dismissed,” &c.

The plaintiff company appeals from this order upon the following-grounds: “First. Because the Circuit Judge, it is respectfully submitted, erred therein in holding that there is no provision in the act of 1873 for service of summons to revive judgment on the executor of the judgment debtor. Second. Because he erred therein in ruling that said judgment, being-obtained on September 26, 1879, must be revived, if at all, under the act of 1873, and that it cannot be revived thereunder. Third. Because he erred in not holding that said judgment, obtained at the time named, could be revived under the act of 1873 by service of summons on James T. Marshall, as executor of the last will and testament of John W. Marshall, deceased, the said John W. being then dead. Fourth. Because he erred in holding that there was no law for the revival of a judgment, recovered at the time mentioned, except the act of 1873, and that this act was defective in that it contained no provision for the service of a summons to revive on the executor of a deceased judgment debtor. Fifth. Because he erred in ruling that the act of 1885, and other acts subsequent to 1873, were no authority to authorize the service of the summons on the executor of the judgment debtor. Sixth. Because he erred in holding that there was no law or authority for the revival of said judgment in the courts of this State. Seventh. Because the judge erred in concluding that good cause was shown why said judgment should not be revived, when no evidence was offered against the judgment, and no showing made to counteract the record of same. Mghth. Because the judgment being good, and no payments on the same, it is unjust in the executor, James T. Marshall, to resist its enforcement, and he should be made to pay the costs of this litigation,” &c.

1 As we understand it, there are but two questions in the case: First. Was the rule to revive the judgment and renew the execution made in time? The judgment was rendered after 1873, and while the act of that date was the law as to judgments and executions, it gave to a judgment a lien for■ ten years from the date of its entry, with this supplemental provision: “Provided, howeoer, That the plaintiff may, at any time in three years after its active energy has expired, revive the-judgment, with like lien as in the original, for a like period, by service of a summons on the debtor, as provided by law,” requiring him to show cause, &c. This provision was omitted in the act of 1885, which was before the ten years of plaintiff’s lien had expired; but this court has held that the latter act (1885) was not intended to apply to judgments previously obtained; and, therefore, as we think, the plaintiff had three years in addition to the original ten within which to make application to revive their judgment, and that carried the right down to September, 1892, and before that time, viz., on December 10, 1891, the rule to show cause, &c., was filed. So that the rule was in time. King v. Belcher, 30 S. C., 381; Ex parte Witte Brothers, 32 Id., 226.

2 Second. But the judge further held, that, as the judgment could only be revived under the act of 1873, and as that made no provision for the service of summons on the executor of the judgment debtor, there was no authority whatever for reviving the judgment against the executor. It is true, that the act (1873) in the section we are considering, does not, in express terms, give the right to serve summons to revive a judgment on the executor of a deceased defendant in execution ; nor, as to that matter, does it expressly give the right to the executor of a creditor, in the ease of his death, to issue such a summons. But we can not suppose that the law-makers, in the very act of giving the right to revive, intended to deny it, in all cases, where either party to the record was dead. On the contrary, we cannot doubt that, properly construed, the act does substantially give the right. The words are, “by service of a summons on the debtor.” Row it seems to us that, in view of the manifest intention, the word “debtor” was here used as a generic term, in condensed and general form, to embrace all proceedings necessary to carry into effect the interest on that side, on the familiar principle that, upon the death of a party, his rights or obligations devolve on his personal representatives. This was not an original proceeding against the executor individually, but a step in regard to an obligation incurred by the testator in his lifetime. Besides, what meaning should be given to the words which immediately follow, “By service of a summons on the debtor, as provided by law?” It can not be supposed that the words, “as provided by law,”’ were used without some purpose, and it could not have been considered necessary simply-to declare that the manner of service on the debtor should be legal, for that was involved in the requirement itself. But it may have been considered proper to use an expression so comprehensive, “as provided by law,” in order to meet some such state of facts as has occurred here, in the death of the defendant in execution, making it necessary to revive the judgment against his executor, “as required by law.”

The same act of 1873 not only contains the provision we have been considering, as to “reviving judgments,” which is 310 of the Code, but also another provision as to the renewing of executions, which is now 311 of the Code. It will be observed as to “service on the debtor,” these two provisions are identical, except for the phrase in 310, “as provided by law,” is substituted in 311, that of “his heirs, executors, and administrators.” We can not conceive a reason for allowing an execution to be renewed, if the judgment on which it issued could not be revived. “The judgment and execution on it are very closely connected. The execution is only process to enforce the judgment, and it can not have active energy unless the underlying judgment has a lien. The questions as to them are in one sense identical. The claim to renew the execution necessarily involves the light to revive the judgment.” See Adams v. Richardson, 32 S. C., 139; Leitner v. Metz, Ibid., 387; Bolt v. Dawkins, 16 Id., 198.

The judgment of this court is, that the judgment of the Circuit Court be reversed, and the case remanded to the Circuit Court for such further proceedings as may be deemed proper.