Witherspoon v. Twitty

43 S.C. 348 | S.C. | 1895

The opinion of the court was delivered by

Mr. Chiee Justice MoIyer.

The facts of this case are so fully and clearly stated in the decree of the Circuit Court, rendered by his honor, Judge Watts (a copy of which should be incorporated in the report of the case), that it will be unnecessary to do more than make a very general statement here. . It seems that the plaintiff in the case above stated recovered a judgment against the defendant, which was duly entered on the 5th day of January, 1860. This judgment, it is claimed, was duly revived by proper proceedings on the 27th of July, 1866, but this claim is stoutly contested, and several of the questions presented by this appeal raise questions of the competency of,the evidence adduced to establish such claim, and as to the validity of that proceeding, if any such there was. It does appear, however, that on the 6th and 8th days of February, 1882, a summons was duly served upon the two administrators of the original judgment debtor, Peter W. Twitty, who had, in the meantime, departed this life intestate, calling upon them to show cause why “the original judgment should not be revived in favor of David A. Williams, as receiver of the estate of said James H. Witherspoon, deceased, according to the form, force, and effect of the former recovery, and why execution thereon should not be renewed.” In pursuance of this summons, on the 1st day of March, 1882, an order was granted by his honor, Judge Cothran, in the following words: “It appearing that the summons in this action has been duly served, and that no answer, demurrer, or notice of appearance has been put in, on motion of Moore & Moore, ordered, that the judgment within mentioned and described be revived in favor of David A. Williams, as receiver of the estate of James H. Witherspoon, deceased, according to the form, force, and effect of the former recovery, and that said receiver have leave to issue execution thereon.” In conformity with this order, it appears from the book of “Pleadings and Judgment,” that on the 8th of March, 1882, a formal judgment of revival was duly entered as authorized by said order.

1 On the 19th of January, 1892, the receiver of the estate of the original judgment creditor instituted the present proceeding, again to revive.said judgment by the service of a summons upon the surviving administrator of the estate of Peter W. Twitty, and all of his heirs at law, to which no answer or return was made except by one of said heirs, viz: Francis E. Twitty, the appellant herein, who, by his answer or return (a copy of which should be incorporated in the report of the case), sets up sundry objections to the revival of the original judgment. Many of these objections, as it seems to us, relate more to the effect of the judgment, if it should be revived, as a lien upon certain lands of the appellant, of which he claimed to have been in undisputed possession for a great number of years, than to the right to revive the judgment. Whether the appellant’s possession of such lands has been of such a character, and continued for such a length of time, as would entitle him to successfully claim the same against such judgment, is not a question which can be considered in the present case.

2 The only question here is, as to whether the Circuit Court erred in adjudging that the judgment should be revived. That question turns upon the effect of the order to revive, passed in March, 1882. That order was made in a proceeding in which all proper parties were before the court (Leitner v. Metz, 32 S. C., 383; Railroad Company v. Marshall, 40 S. C., 59), and hence was conclusive of all questions which were then made, as well as upon all questions which were necessarily involved in the issue then determined, whether such questions were then raised or not. Sullivan v. Shell, 36 S. C., 578, and the several eases therein cited and followed. The very issue then before the court was as to the right to revive the judgment, and this, of course, involved many of the questions which are now urged upon the court. Then was the proper time to raise any objections based upon any condition of facts existing prior to that time, and if not raised then, it is now too late to do so, as all such matters must be regarded as res adjudícala. The right to revive being then solemnly adjudicated, and the present proceeding having been instituted within twenty years from the date of such adjudication, we see no error in the judgment appealed from. The view which we have taken renders it unnecessary to consider any of the other questions raised by this appeal, as under that view they become immaterial.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.