First National Bank v. Carolina Midland Warehouse Co. , 98 S.C. 168 ( 1914 )

July 15, 1914. The opinion of the Court was delivered by This was a summons to renew an execution, and was heard by his Honor, Judge Gage, at the Fall term of the Court, in 1913, for Barnwell county. The summons (issued October 1, 1913) recited that the judgment was obtained and entered upon the docket, and execution issued thereon April 10, 1895, from the Court, but that the active energy had expired, and defendants were summoned to show cause why the same should not be renewed at the next term of Court. The defendants answered, and alleged that more than ten years had elapsed since the rendition and entry of the judgment, and that the lien thereof, if any, had been lost. His Honor refused the motion without prejudice to the plaintiff to prosecute his remedy in any other way he sees fit except that determined in this proceeding. The plaintiff appeals and, by three exceptions, alleges error on the part of his Honor. At the hearing exceptions two and three were abandoned. The first exception is as follows: "1. Because his Honor erred in sustaining and holding sufficient the return made by the defendant, C.M. Edenfield, to the summons to renew execution on said judgment, in that, this being, not a summons to revive said judgment, but a summons to renew execution, which is the equivalent of a motion for leave to issue execution. His Honor erred in applying the law governing the revival of judgments, and in not holding, that the plaintiff could apply to the Circuit Court for leave to issue execution on its judgment after ten years from its date and within twenty years therefrom."

This exception is overruled. Sections 347-349 of Code Civ. Proc. 1912, provides how an execution can be revived and that it must be within ten years after rendition of judgment.Blohme v. Schmancke, 81 S.C. 89, 61 S.E. 1060, and cases therein cited.

Judgment affirmed.

MR. JUSTICE GAGE was disqualified, and did not sit in this case.