Once a magistrate's court judgment is rendered and notice of the judgment given the losing party, the losing party should immediately comply with the terms of the judgment. Upon payment in full, the judgment creditor shall file a statement of collection with the magistrate court and with the clerk of the circuit court, if the judgment had been previously filed with the clerk of the circuit court. Rule 17(d), SCRMC. Since a magistrate may not punish a party for contempt for failure to obey a judgment of his court, he must resort to other methods of enforcement. If the judgment requires the turning over of personal property to another, as in a claim and delivery action, resort may be had to the remedy of execution. (S.C. Code Ann. §§ 22-3-1460 and 22-3-1470). Generally, where the court's judgment requires payment of money, the most common remedy in magistrate's court is execution. The process to enforce a judgment for the payment of money shall be by writ of execution and shall be conducted as provided by law. Rule 17(c), SCRMC.
Execution is defined as the remedy afforded by law for the enforcement and accomplishment of the terms of a judgment. Executions may be had against the property of the judgment debtor, against his person, and for the delivery of the possession of real or personal property, or such delivery with damages for withholding the property. (§ 15-39-10). Magistrate's judgments are enforced through the issuance of a writ of execution by a magistrate, or through circuit court. (See Procedure After Verdict).
In the case of judgments docketed only with the magistrate who rendered the judgment, the prevailing party must apply to that magistrate for leave to issue a writ or order of execution (sometimes called a writ or order of enforcement) within three years of the rendition of the judgment. (§ 22-3-310). However, if a transcript of the judgment was requested of the magistrate and filed with any clerk of court by the prevailing party, application for the writ's issuance must be made to the circuit court within ten years of the rendition of the judgment. (§§ 15-39-20, 15-39-30, 15-39-90, 22-3-300, and 22-3-320).
The execution should be prepared by the party creditor (the one to whom the debt is owed), or his attorney (Op. Att'y Gen. No. 3915 dated 1973-74). It must be directed to the magistrate's constable, sheriff (or coroner in certain instances), must be attested to by the magistrate, subscribed by the party issuing it, or his attorney, and must show the following:
a) the judgment, b) the name of the court, c) the county in which filed, d) the names of the parties, e) the amount of the judgment if it be for money, f) the amount remaining due thereon, g) and the time of the docketing of the judgment in the county to which the execution is issued. (§§ 15-39-80, 22-3-320).
The execution should additionally direct the officer to carry out the instructions as detailed in one of subsections (1) through (4), of § 15-39-80.
If the judgment is for the recovery of money, the execution may be against the property of the losing party which can be found within the magistrate court's jurisdiction. (§§ 15-39-80, 22-3-310, and 15-39-40).
In any case in which a plaintiff has proceeded in attachment and property of the defendant is being held by the court, upon the rendering of a judgment in the plaintiff's favor, the plaintiff should move to execute on the judgment, thereby allowing the sale of the attached property and the satisfaction of the judgment from the proceeds. (§ 15-19-350(2)).
If the execution requires the delivery of specific personal property (as in claim and delivery), it must be issued in the county in which the judgment has been filed and a part or all of the property sought is located. (§§ 22-3-300, 22-3-1470, 15-39-80(4), and 15-39-40).
An execution of arrest against a judgment debtor can be issued by a magistrate (§ 15-17-40) if the execution is returned unsatisfied (§ 15-39-50) and the action is of a type for which the defendant could be arrested as outlined in § 15-17-20. If the two requisites above are met and the judgment has only been filed with the magistrate, he may issue the execution against the person subject to the provisions of §§ 15-17-20 through 15-17-210. If the judgment was filed with the county clerk, the execution against the person should issue from the clerk.
In conformity with § 22-3-310, the constable or sheriff to whom the writ of execution was issued must make a return to the magistrate within sixty (60) days of the date of issuance. The return should state the results of the execution as set out in § 15-39-130, of either a full execution, a partial one, or a failure to execute.