Ex Parte Ware Furniture Co. (five Cases).

• Decision Date: 31 March 1897
• Citation: 49 S.C. 20,27 S.E. 9
• Parties: Ex parte WARE FURNITURE CO. (five cases).
• Court: South Carolina Supreme Court

27 S.E. 9

49 S.C. 20

Ex parte WARE FURNITURE CO. (five cases).

Supreme Court of South Carolina.

March 31, 1897.

Judgment by Confession—Where Entered.

A confession of judgment under Code Civ. Proc. §§ 383-385, providing for entry of judgment without action on a confession filed with "the clerk of the court of common pleas, " and giving such a judgment the attributes of one entered in an action, can only be entered in the county in which the judgment could have been obtained by action under section 146, requiring actions to be tried in the county where defendant resides.

Affirmed by divided court; McIver, C. J., and Jones, J., dissenting.

Appeal from common pleas circuit court of Orangeburg county; W. C. Benet, Judge.

The Ware Furniture Company moved to set aside five judgments by confession against J. E. Steadman, in favor of Marshall, Wescoat & Co., Johnston, Crews & Co., C. Wulburn & Co.. Samuel R. Marshall & Co., and the Imperial Fertilizer Company, respectively. From a decree granting the motions the several judgment creditors appealed, and the appeals were heard as one case by agreement. Affirmed.

The decree of Mr. Justice Benet and the exceptions thereto are as follows:

Decree.

"These various matters came before me on the motion of the Ware Furniture Company, a judgment creditor, junior to the several judgment creditors named above. It was sought to vacate the several judgments by confession obtained against the defendant, Steadman, by these senior judgment creditors, on six various grounds. But the view I take of the case makes it unnecessary to consider more than one of these grounds, namely: That, when the said judgments were made and entered, the said court had no jurisdiction, neither the defendant nor the plaintiffs being residents of the county of Orangeburg, but that in each of said judgments by confession the plaintiffs and the defendant were residents of other counties.' In an agreed statement of facts, upon which the motions were heard, it is admitted that the plaintiffs and the defendant were all residents, not of Orangeburg county, where the judgments by confession were entered, but of other counties. This admitted fact constrains me to sustain the plea to the jurisdiction made by the junior judgment creditor, and to hold that, for lack of jurisdiction in the court where the confessions were entered, said judgments by confession must be vacated and set aside as null and void.

"Our Code of Civil Procedure treats of judgments by confession in title 12, c. 3, §§ 383, 384, 385. It seems to me that a candid consideration of these three sections necessarily leads to the conclusion that a judgment by confession should be entered in the county of which the defendant is a resident, and filed with the clerk of the court of common pleas of that county, or with a trial justice (now magistrate) of that county when for an amount not exceeding one hundred dollars. The entering and filing of a judgment not only gives the creditors a lien upon the debtor's property, but it gives notice to the world of the existence of that lien. The spirit of the law would be violated, and one of its main purposes defeated, if a debtor in Barnwell county, as in this case, should be suffered to enter a confession of judgment in the court of common pleas for Orangeburg county, or that a debtor in Horry county should file his statement for judgment by confession in the court of common pleas for the county of Pickens or of Hampton. If this could lawfully be done, then would it be equally lawful for a Horry county debtor to confess judgment for a hundred dollars or less in a magistrate's court in distant Pickens or Hampton. It is worthy of note that section 385 reads: 'The statement may be filed with the clerk of the court of common pleas, or with a trial justice.' The definite article 'the' in the first case, and the indefinite 'a' in the second, plainly point to the fact that there is only one clerk of the court of common pleas with whom the statement may be filed, namely, the clerk of the debtor's county of residence; but that there are several trial justices in the county, any one of whom would have jurisdiction. If it had read 'may be filed with "a" clerk of "a" court of common pleas, ' the opposite view might have been tenable.

"I am not forgetful of the fact that in a recent manuscript decision of our supreme court (Drake v. Steadman, 24 S. E. 458, filed March 23, 1896) Mr. Chief Justice McIver, referring to this very question, says: 'We must not be understood as saying or even intimating that a judgment by confession is void because it is entered in a county in which the judgment debtor does not reside at the time of its entry.' Until, however, the supreme court shall distinctly enunciate the contrary doctrine, I shall feel bound to agree with the doctrine laid down in Freeman on Judgments. In section 547 of that work (3d Ed.) the learned author says: 'Judgments by confession are in no wise exempt from the rule applicable to other judgments, that, to be valid, they must be entered in a court having jurisdiction over the subject-matter of the action. Though no adjudication is in fact required in entering a judgment of confession without action, yet it has all the qualities, incidents, and attributes of other judgments, and cannot be valid unless entered in a court which might have legally pronounced the same judgment in a contestedaction.' This latter sentence, in my opinion, furnishes the true test; and, tried by this test, the judgments by confession in the cases under consideration must be pronounced invalid. It is admitted that the court of common pleas for Orangeburg county, where the judgments by confession were entered, would have had no jurisdiction to pronounce the same judgments in contested actions either at law or in equity. It is also admitted that the same court could not acquire jurisdiction by the consent of the defendant. And, with my view of the matter, I am bound to hold that that court had no jurisdiction. Such being the case, no valid judgment could be rendered by it.

"It is argued that the fact that the defendant, Steadman, had real property in Orangeburg county, should be considered by the court. This admitted fact cannot alter the jurisdictional status. It is therefore ordered, adjudged, and decreed that the judgments by confession in the causes set forth in the caption of this decree be, and the same are hereby, declared to be invalid, null, and void; and they are hereby vacated and set aside; and the clerk of the court of common pleas for Orangeburg county is hereby ordered to mark them accordingly."

Exceptions.

"Prom this decree the plaintiffs in each of the said judgments by confession, to wit, the Imperial Fertilizer Company, Marshall, Wescoat & Co., C. Wulburn & Co., Johnston, Crews & Co., and Saml. R. Marshall & Co., duly gave notice of appeal to the supreme court, on the following grounds of exception: (1) Because the circuit judge erred in holding that the confessions of judgment were null and void, for lack of jurisdiction in the court where the confessions of judgment were entered. (2) Because his honor should have held that the court of common pleas, sitting in any county in the state, is a court of general jurisdiction; that it is incumbent upon the party questioning the jurisdiction to show the limitation thereon; and that there is no territorial limitation upon the jurisdiction of the court of common pleas in regard to a confession of judgment. (3) Because his honor erred in holding that under sections 383, 384, and 385, c. 3, tit. 12, of the Civil Code of Procedure, there is a limitation upon the jurisdiction of the court of common pleas in regard to confessions of judgment, whereby a confession of judgment, to be valid, must be entered in the court of common pleas for the county where the defendant resides."

Abial Lathrop and Trenhohm, Rhett & Miller, for appellants.

S. G. Mayfield, for respondent.

POPE, J. By agreement, the five above-stated cases are to be heard together on appeal upon one "case" and exceptions. It seems that, after due notice, a motion was made in each of the above-entitled causes to declare the judgment by confession in each of said causes null and void, and to vacate the same, which came on to be heard before his honor, Judge Benet, on the 20th day of January, in the year 1806, in the court of common pleas for Orangeburg county. This motion was made by the respondent here, the Ware Furniture Company, and was based upon the following grounds: "First, that, when the said judgments were made and entered, the said court had no jurisdiction, neither the plaintiffs nor the defendant being residents of the county of Orangeburg, but that in each of said judgments by confession the plaintiffs and the defendant were residents of other counties; second, because the confessions were made before and filed with W. G. Albergotti, an alleged deputy clerk of Orangeburg county, and not before the clerk of the court; third, because the statements on which said confessions were founded were each for itself insufficient; fourth, because the statement for and on which the judgment in favor of the Imperial Fertilizer Company was confessed was not only not sufficient, but is untrue; fifth, because the defendant, J. Elbert Steadman, swore to, or attempted to, said affidavits in which said confessions of judgment are based, before J. D. Milhous, who was at that time, to wit, on March 3, 1894, a United States officer; sixth, because the statements on which each of the judgments were confessed has never been sworn to as provided by law." At the hearing before Judge Benet, an agreed statement of facts and certain testimony used in another case were submitted. By the decree of Judge Benet, he expressly confined himself to the question whether, it being admitted that the plaintiffs in each of these five cases were residents of Charleston county, in this state, and not residents of the ...