Babb v. Sullivan

Citations

• 43 S.C. 436
• 21 S.E. 277
• 1895 S.C. LEXIS 171

Syllabus

<p>1. Revival of Judgment — Res Judicata. — A defendant summoned to show cause why a judgment should not be revived for a sum stated, failed to appear, and an order of revival, “according to the form, force, and effect of the former recovery,” was entered. Thereupon an execution was issued for the sum claimed in the summons, and the defendant then brought action to have the judgment marked satisfied, alleging that it had been fully paid; but the complaint in this action was dismissed. The execution was then levied, whereupon the executors of the judgment debtor, now deceased, moved in the original cause to have the execution amended, alleging that a much smaller sum was due at the time of revival than was called for by the execution. Held, that the amount due on the revived judgment was res judicata.</p> <p>2. Ibid. — Laches—Acquiescence.—The summons to renew having been served in October, 1883, the order of revival entered, and execution issued in December, 1884, and this motion to amend the execution not noticed until July, 1894, the judgment debtor and his executors are barred, of the relief they seek, by laches and acquiescence. The principles which govern the courts in applying the doctrine of laches, as affected by lapse of time and other circumstances, stated and explained.</p>