American Agr. Chemical Co. v. Thomas

• Decision Date: 01 June 1945
• Docket Number: 15739.
• Parties: AMERICAN AGRICULTURAL CHEMICAL CO. v. THOMAS.
• Court: South Carolina Supreme Court

34 S.E.2d 592

206 S.C. 355

AMERICAN AGRICULTURAL CHEMICAL CO.
v.
THOMAS.

No. 15739.

Supreme Court of South Carolina

June 1, 1945

[34 S.E.2d 593]

[206 S.C. 356] John G. Dinkins, of Manning, for appellant.

Samuel Want and James S. Verner, both of Darlington, for respondent.

[206 S.C. 357] FISHBURNE, Justice.

This action was brought on July 14, 1944, upon a default judgment of $727.24, obtained by the plaintiff on July 22, 1924, against the defendant, F. L. Thomas.

The judgment was based upon certain notes, and remained inactive for a period of nineteen years, eleven months, and twenty-two days, when the present action was commenced. So far as the record discloses, no execution had ever been levied upon the judgment; and within the ten year period provided by Section 743(2) of the Code, no attempt had been made to preserve and extend its lien by the statutory revival proceeding.

At the time of the rendition of the judgment upon which the action is based, the period of limitation of actions was twenty years. This is still the law. Code, Section 387.

The summons and complaint, together with an annexed order nisi of the Circuit Court, were served on July 14, 1944. This rule required the defendant to show cause upon the twenty-first day after service, or as soon thereafter as the matter could be heard, why an order should not be made in the cause renewing the judgment described in the annexed complaint, or entering judgment anew in favor of the plaintiff.

The defendant filed an answer, also denominated a return, pleading several defenses. To this pleading a general demurrer was interposed, which was sustained, and final judgment was rendered against the defendant, from which he appealed.

The first question is whether the respondent complied with Section 354 of the Code.

The Code provides (Section 354) that no action shall be brought upon a judgment rendered in any Court of this State, except a Court of magistrate, between the same parties without leave of the Court, or Judge thereof at chambers, [206 S.C. 358] 'for good cause shown, or notice to the adverse party * * *.' (Emphasis added.)

A preliminary question should be disposed of relating to the word 'or,' appearing in the foregoing section of the Code, which we have italicised.

Appellant contends that a typographical error was made in this section, and that the word 'on' should be substituted for the word 'or'. By reference to Act No. 301, Vol. 27 of Statutes at Large, page 536 (1912), which was later incorporated in Volume 2 of the Code of 1912 as Section 116, we find the word 'on', making this sentence read 'on notice to the adverse party.' In the subsequent Codes--1922, 1932, and 1942--the word 'or' instead of 'on' appears. [34 S.E.2d 594]

We are satisfied that in the Codes subsequent to 1912 a misprint has been made. The history of the statute clearly shows that it was the legislative intent that the word 'on' should be used, and that the correct wording of the statute should be 'on notice to the adverse party.' This is conceded by respondent.

The right to institute an action on a judgment is conditioned upon compliance with Section 354; that is, as we construe it, application should first be made to the Court on notice to the defendant, and good cause therefor be shown. Appellant contends that this statutory requirement was not complied with.

When the summons, complaint and order were served upon the defendant, on July 14, 1944, the twenty year statute of limitations lacked only eight days of expiring. It may be inferred from the record that the matter did not come up for a hearing before the Circuit Court for several months thereafter.

During the hearing, the statement was made by plaintiff's counsel that the action was maintainable under Section 387 of the Code (the twenty year statute), whereupon counsel for the defendant raised the issue that the plaintiff had not [206 S.C. 359] complied with the provisions of Section 354. The point was made that no leave of the Court had been obtained, permitting the commencement of the action for good cause shown, on previous notice to the defendant. The defendant then moved the Court for an order allowing him to demur or amend the answer and return previously filed so as to set up noncompliance with the statute. Thereafter, by an order dated December 1, 1944, the Court refused defendant's motion, and gave judgment against the defendant for the sum prayed for in the complaint.

The real and major issue presented by the appeal is whether the Circuit Court had jurisdiction of the subject-matter. It is argued by the respondent that the procedure followed complied substantially with the requirements of Section 354, in that by the order nisi attached to the summons and complaint, the Court assumed jurisdiction, and that the notice required by the statute was completely met by that provision of the order which required the defendant to show cause why the judgment should not be renewed or entered anew in favor of the plaintiff. This contention, it seems to us, completely overlooks the specific statutory requirement which provides that 'no action shall be brought upon a judgment * * * between the same parties, without leave of the Court, or a Judge thereof, at chambers, for good cause shown on notice to the adverse party.'

The statute clearly contemplates by these words of negation and prohibition, that a hearing would first have to be held upon notice to the adverse party, and that good cause would have to be shown, before an order could issue granting leave to commence the action. The manifest object of the Legislature was to prohibit an action upon a judgment until these steps had been taken. In the absence of the statutory prerequisites, the Court lacked jurisdiction to pass upon the merits of the case and to award judgment.

The order nisi did not purport or profess to authorize the bringing of the action under Section 354. It appeared to [206 S.C. 360] proceed upon the theory that plaintiff sought the revival of its judgment under Section 743(2), where the procedure is not in the form of an action, but involves merely the service of a summons upon the judgment debtor to show cause why the judgment should not be revived. In the case of an action, however, where a defendant has twenty days after service of summons within which to answer the complaint, the issuance of such an order would have been entirely irregular and unauthorized. In this connection it is significant that it was not until the hearing before the Court upon the return to the rule that this question became clarified when counsel for the plaintiff stated that the action was maintainable under...