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 contested
action.' 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 action 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.
"From
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 courty 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."