Savannah Guano Co. v. Sanders ( 1921 )

The opinion of the Court was delivered by

Mr. Justice Fraser.

The Savannah Guano Company on 4th January, 1916, obtained a judgment against the appellants herein for $1,554.26 and issued execution therefor. The Lummus Cotton Gin Company obtained judgment against the appellants on April 10, 1917, but the record fails to show that they issued execution therefor at the time. In July, 1917, the Sheriff took proceedings to set off the appellants’ homestead. In November, 1917, the appraisers filed their return with the Sheriff, in which they assessed the real property of appellants at $2,750. The Sheriff then served the required notice on appellants to pay the surplus of $1,750 into his office within 60 days. Further time was given the defendants in execution by the judgment creditor, and they paid it along from time to time until the senior judgment was paid in full on November 13, 1919. On November 17, 1919, the Lummus Cotton Gin Company filed the homestead proceedings in the office of the Clerk of Court, and on November 19, 1919, filed exceptions on the ground that it had received no notice of the homestead proceedings and asked a trial de novo. Other exceptions and some affidavits were filed, but were subsequently withdrawn; so this case stands upon the one exception.

1 The case was tried on the record and his Honor, Judge Bowman, who. had the record before him, found as a mjatter of fact that no notice had been given the Lumnfus Cotton Gin Company, and, as the record is not before us, we cannot disturb this finding.

2 There being no- notice given to the judgment creditor, Lummus Cotton Gin Company, they are not bound by the proceedings. See Nixon Grocery Co. v. Spann, 108 S. C. 329, 94 S. E. 531.

3 Besides this, the appraisers valued the land as exceeding the homestead by $1,750. Of this due notice was given to the judgment debtor. Section 3713 provides that the excess must be paid within 60 days, and only when the excess is paid “within the time limited” shall the Sheriff refrain from selling; “that if, after notice, the party claiming the homtestead pays, or causes to be paid, the surplus over one thousand ($1,000.00) dollars, he shall, upon recording the return and receipt of the Sheriff for such surplus, indorsed on said return, as provided in precedW ing section of-this chapter, hold the property so appraised and set off, freed and discharged from all debts,” etc. It is thus seen that the assignment of homestead was not complete. The matter was still open, and the respondent was in time to object and require a reassessment.

The order appealed from is affirmed.

Mr. Chiee Justice Gary and Mr. Justice Watts concur.