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2009-UP-385 - 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Unpublished Opinion No. 2009-UP-385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.