Lester v. Straker

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR
RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2),
SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Ken H. Lester, Respondent,

v.

Glen P. Straker, Carl C. Hendricks, Jr., P.J. Tanner, Sheriff of
Beaufort County Respondents,  

And

Carolyn Songer Austin, Appellant.

 

Appeal From Beaufort County

Carmen T. Mullen, Circuit Court Judge

Unpublished Opinion No. 2009-UP-385

Heard May 5, 2009 – Filed July 8, 2009

AFFIRMED

Matthew
A. Gess, of Beaufort, for Appellant.

Harold
A. Boney, Jr., of Beaufort, and Mark H. Lund, III, of Hilton Head, for
Respondents.

PER
CURIAM: 
In this declaratory judgment action concerning the rights and priorities of
three judgment creditors of Carl C. Hendricks, Jr., the circuit court granted
summary judgment in favor of judgment creditors Ken H. Lester and Glen P.
Straker and ordered distribution of sufficient funds to satisfy their judgments. 
Judgment creditor Carolyn Songer Austin appeals, asserting Lester is barred
from claiming an interest in the funds on the ground his judgment was not
enforced within the ten year period for execution.  In the alternative, Austin
asserts the trial court erred in failing to distribute the funds between the
three judgment creditors on a pro rata basis. 

While
Austin argues supplementary proceedings are not a prerequisite for a judgment
creditor to enforce its judgment, this case involves property of the judgment debtor
in the hands of a third party that could not be reached absent an order obtained
in supplementary proceedings.  Because Lester and Straker obtained orders in
supplementary proceedings for levy and attachment of the subject property within
the ten year period for execution and Austin did not, we affirm the order of
the circuit court pursuant to Rule 220(b), SCACR, and the following
authorities:  Rule 69, SCRCP ("Process to enforce a judgment for the
payment of money shall be by writ of execution . . . ."); S.C. Code Ann. §
15-39-30 (2005) ("Executions may issue upon final judgments or decrees at
any time within ten years from the date of the original entry thereof and shall
have active energy during such period . . . ."); Johnson v. Serv. Mgmt.,
Inc., 319 S.C. 165, 168-69, 459 S.E.2d 900, 902-03 (Ct. App. 1995) (holding
property of judgment debtor in the hands of a third party can be reached after
supplementary proceedings); U.S. v. S. Growth Indus., Inc., 251 S.C.
404, 408, 162 S.E.2d 849, 851 (1968) (holding judgment creditor's failure to
locate assets of debtor against which there could be an attachment or levy
resulted in a general unperfected lien upon which priority could not be given); Ex Parte Roddey, 171 S.C. 489, 172 S.E. 866 (1934) (holding legal preference
is acquired by judgment creditor whose diligence discovered property of the
judgment debtor by way of supplementary proceedings). 

AFFIRMED.

HUFF,
PIEPER, and GEATHERS, JJ.,  concur.