I regret that I find myself in disagreement with the opinion of MR. JUSTICE FISHBURNE. The facts being fully stated in the majority opinion, I will not repeat them. It appears to me that the conclusions reached therein disregard fundamental legal principles.
Two questions are answered in the prevailing opinion. These questions are: (1) Did the respondent (plaintiff below) obtain the consent of the Circuit Court to the institution of this action, as required by Section 354 of the Code; (2) if the consent of the Circuit Court was not so obtained, is the defect one which can be waived?
The majority opinion does not deal with a third question presented by the record, to wit, whether, if the two questions previously stated are answered in the affirmative, the facts of this case constitute a waiver of the alleged infirmity in the procedure of respondent. However, this question would have to be answered in the affirmative.
The statutory direction (as applied to the first question) is that "No action shall be brought upon a judgment * * * without leave of the Court * * * for good cause shown on notice to the adverse party." There can be no doubt about *Page 364 the fact that this language creates a condition of the right to maintain an action on a judgment.
The reliance of the respondent in this connection is upon the order nisi granted by the Circuit Judge. Let us then inquire if this order was granted prior to the institution of the action.
Under Section 357 of the Code, an action is not to be deemed commenced unless the summons is served on the defendant, or delivered to the Sheriff for service.
The record in this case discloses that the summons, complaint and nisi order were served upon the appellant on the same day. Obviously, therefore, the making of the order preceded the service of the summons. In the steps taken by the respondent here, the first step was the application for the order. And this application, as a matter of statutory definition, constituted a motion. Code, Section 817. Hence, the first proposition with which we are dealing is that the respondent moved before the Circuit Judge, before the commencementof the suit, for an order requiring the appellant to show cause why the action should not be maintained.
It is true that the language of the order does not include the words "leave of the court." This is an immaterial consideration. The question is whether the language of the order put the appellant on notice that an application had been made to the Court, in accordance with the requirement of the statute, for leave to institute the action. The language of the order is that the appellant show cause "why an order should not be made in the cause above entitled renewing the judgment described in the annexed complaint or entering judgment anew in favor of the plaintiff and against the defendant * * *."
This language can have no other meaning that than the Circuit Court, upon motion of the plaintiff, was taking jurisdiction of the cause for the purpose of enabling the defendant to show cause, if any he had, why the action was *Page 365 not maintainable, and why the Court should not proceed to hear the case.
And the appellant's pleading (denominated "answer and return") would have been the same even if the order had stated in so many words that the defendant shall show cause, if any he has, why "leave of the court" should not be granted for the prosecution of the action.
Thus it will be seen that up to this point we have the following elements: (1) An application (or motion) for an order directing the defendant to show cause why the relief prayed in the complaint should not be granted; (2) the taking of jurisdiction by the Circuit Court by the granting of the application or motion; and (3) the answer and return of the defendant purporting to show cause why jurisdiction should not be taken by the Court.
No doubt should be left as to the correctness of the statement of the third point above indicated. In the answer of the appellant, which is stated by him to be also "a return to the rule to show cause," it is alleged that the action is not maintainable under the limitation statute, Section 388 of the Code, which is the only statute under which the action can be supported from the limitation standpoint; that the plaintiff was guilty of negligence in failing to assert its judgment or to preserve the lien thereof, and that its conduct called into play the doctrines of estoppel, laches, abandonment and waiver; that the maintenance of the action is against the policy of the law, etc.
Thus the appellant, confronted with a complaint upon a judgment, recognized that the action is one which is maintainable only upon compliance with the provisions of Section 354 of the Code, and interposed a return to the ordernisi and an answer to the complaint which in the stated opinion of the appellant did not constitute the "good cause" required by Section 354 of the Code.
In other words, appellant recognized, as I think the language of the order nisi clearly required, that his burden was *Page 366 to show why the action was not maintainable under Section 354 of the Code. And appellant lends emphasis to this controlling consideration when he argues in his printed brief, on the point now under discussion, that his fifth defense "alleges that plaintiff failed to follow the procedure as provided by the statute laws of this State."
The statute contains no directions as to the form in which leave of the court shall be granted. From the standpoints of due process and of fairness to the defendant in a suit of the present character, I am unable to conceive of a better way to afford him every opportunity to prevent the granting of the required leave of court than by giving him such a notice as was given in the present case, with full opportunity to be heard before any step leading to the hearing of the case on its merits is taken, and to be heard on the specific issue now under discussion, that is to say, whether leave of the Court should be granted for the institution of the suit, and whether good cause for the institution of the suit has been shown.
There being no statutory directions on the subject of the forms or procedure to be used, it is pertinent to observe that when the Circuit Court assumed jurisdiction of the cause by the granting of the order nisi, and gave appellant an opportunity to show cause why the Court should not permit the prosecution of the action it expressed itself as satisfied with that method of invoking the jurisdiction of the Circuit Court, and the permission of that Court to prosecute the suit as adopted by the respondent is a sound and proper method. Of course the conclusion thus reached by the Circuit Judge is reviewable, as all matters which are within the discretion of the Circuit Court are reviewable, but if the review discloses that there has been no abuse of the discretion in the exercise of the power granted the Circuit Court, this Court will not reverse. The reversal here adjudicated is tantamount to a ruling by this Court that there was an abuse of discretion on the part of the Circuit Judge, without the slightest indication that the course followed by *Page 367 him failed to give the appellant any of the rights conferred by the statute, and particularly the right and opportunity to show the Court why it should not, as it proposed to do in the absence of a showing to the contrary, grant leave to prosecute the action.
When a Court proceeds with a cause, it necessarily decides that it has jurisdiction. 21 C.J.S., Courts, § 113, pp. 174, 175. And that is what "leave of the court" to sue entails.
I think that in a large measure the holding in the majority opinion involves a misapprehension arising out of the fact that in this case the order nisi and the return thereto, involving the determination of the Court whether it would permit the action to proceed, were dealt with in the same final order of the Circuit Court that rendered judgment on the merits. Superficially it might be argued from this fact that the leave of the Court to prosecute the action and the entry of judgment on the merits were coincident acts, and that therefore the respondent's case lacks the separate successive elements of the granting of leave of Court and the hearing of the case on the merits.
But an examination of the record readily discloses that this was a situation created by the appellant himself. The order nisi and appellant's return thereto were fixed for hearing at a time specified in the order nisi. But the appellant chose to make his answer at the same time that he made his return, and to argue both of these matters before the Circuit Court at the same time. When he did this, he was in the situation of having to deal not merely with the sufficiency of his return on the question of the determination of the Court whether it would proceed to hear the cause, but also with the respondent's motion to strike his return and answer on the ground that the same were sham, frivolous, etc., and with respondent's demurrer that the answer did not disclose a defense to the complaint.
The Circuit Court, having expressly concluded that it would permit the litigation to proceed, therefore was compelled *Page 368 to act on the demurrer and motion and did so by finding the answer insufficient and rendering judgment in accordance with the prayer of the complaint.
In other words, it was the action of the appellant in answering with an insufficient answer that brought about the judgment in favor of the respondent at the same time the leave to institute the action was granted, and not any premature or irregular action on the part of the respondent.
If we disregard the foregoing considerations, and proceed to a discussion of the question whether the judgment rendered in the present case is sustainable on the theory of waiver of the requirement of the granting of leave to institute the action, we need to bear in mind that to say that a defect is jurisdictional is a far different thing from saying that a jurisdictional defect is fatal and that considerations of waiver have no application. There are many illustrations of this.
The highest legal test that can be applied to the validity of legal proceedings is due process of law. Yet it is elementary that failure to bring the defendant into Court by the service of a summons is waived by answering, or by proof of knowledge that although proper service was not made on the defendant the institution of the action against him was known to him and that he failed to plead thereto. Too, although "a defendant has the absolute right, and it is a valuable one, to have an action against him brought in the county of his residence," the failure of the defendant to raise the issue that he has been sued in the wrong county until after he has pleaded in the cause (and has presented testimony at the trial) constitutes waiver. Rosamond v.Lucas-Kidd Motor Company, 182 S.C. 331, 189 S.E., 641,644.
Many other illustrations might be cited to show judicial recognition of the waiver of lack of jurisdiction where the issue is one of the jurisdiction of the person. *Page 369
It is said that on the other hand lack of jurisdiction of the subject-matter of the action cannot be waived.
A striking illustration of the proposition that jurisdictional defects may be waived is contained in the case ofSenn v. Spartanburg County, cited in the majority opinion. There, a salary claim against the county was disallowed by the county board. The proper action was to bring a suit in the original jurisdiction of the Court of Common Pleas for Spartanburg County. The claimant, however, proceeded in the Court of Common Pleas by way of appeal from the county board. There was no such appellate jurisdiction in the Court. "But in the interest of the practical administration of justice," the Court held that "because the parties voluntarily appeared and to all intents and purposes consented to trial", the judgment rendered by the lower Court as an appellate tribunal, though entirely outside of the jurisdiction of the Court, should be upheld [192 S.C. 489,7 S.E.2d 457].
A nearer approach to the issue involved in the present discussion is found in the rule relating to the granting of temporary injunctions. Under the statute such injunctions "may be granted at the time of commencing the action, or at any time afterwards, before judgment * * *." Code, § 567. Although this statute thus purports to prevent the granting of the injunction until the action has been commenced — that is to say, until the summons has been served or lodged with the Sheriff for service, this Court has uniformly held that the injunction may be granted prior to the service of the summons.
But in the present case, we are not concerned with the distinction between jurisdiction of the person and jurisdiction of the subject-matter, because admittedly the Circuit Court here had jurisdiction both of the person and of the subject-matter of the action. The jurisdictional issue with which we are concerned is a matter of procedure. It is true that it is not a routine matter, but a matter that goes to the *Page 370 right of the Court to proceed with the trial of the case prior to obtaining leave to bring the suit. Nevertheless, it remains a matter of procedure, far less vital to the defendant than the issue of jurisdiction of the person and at no point approaching the fundamentals involved in the doctrine of jurisdiction of the subject-matter.
The cases of this Court cited in the majority opinion on this point hold nothing to the contrary. In the case of Ladshawv. Hoskins the wrong person was made defendant. And in the case of Hunter v. Boyd the action was an automobile attachment case for the death of an infant. At the time that case was decided, there was no provision in the automobile attachment law authorizing the proceeding on behalf of an administrator. In Rosamond v. Lucas-KiddMotor Company the Court was dealing with the subject of waiver of personal jurisdiction, and held that it could be waived.
When we add together the facts that the Court had jurisdiction of the defendant and of the subject-matter of the action, that the defendant, before the institution of the action, was ordered to appear before the Court on the issue of the respondent's right to obtain the relief demanded, and that except for the purpose of respondent and of the Court to comply with Section 354 of the Code there was no need or purpose in applying for or granting the order nisi, it is difficult to find in the field of jurisprudence with which we are dealing any legal principle upon which the appellant can rely to escape the consequences of his failure to challenge the right or power of the Court to proceed, or to excuse his inability to show any reason why the Court should not proceed.
It is apparent that Section 354 of the Code was taken from the New York practice code as it existed at the time of the adoption of a code of practice in this State. From the references to the New York law contained in the majority opinion, it is apparent that there was a difference of opinion *Page 371 among the inferior Courts of New York as to whether the failure to obtain leave of the Court to institute an action of the present character was jurisdictional, and if so, whether the defect can be cured nunc pro tunc or waived. But this difference of opinion, according to the review of the cases by MR. JUSTICE FISHBURNE, was resolved by the highest Court of the State of New York (Lane v. Salter, cited in the prevailing opinion), which held that the failure to obtain leave of Court was a mere irregularity which might be waived, and that leave might be granted nunc pro tunc. As I understand the New York law, from the citations and quotations given in the majority opinion, the change of the rule in that state to make leave of the Court an indispensable jurisdictional prerequisite arose from a change in the language of the applicable statute. In its original form, the New York statute, like the South Carolina statute, merely required that leave of court be obtained to institute an action of the present character. The Legislature of the State of New York apparently was dissatisfied with the holding of the Court in the case of Salter v. Lane that this requirement is not jurisdictional, and that noncompliance with it was a mere irregularity that could be waived; and in consequence, the Legislature enacted a new law prohibiting the bringing of actions of the present character "unless * * * the court * * * has previously made an order, granting leave to bring it." Code Civ. Proc. § 1913. (Emphasis added.) This statutory language evidently is construed by the New York Courts, according to the majority opinion herein, to involve a separate and distinct proceeding to obtain the leave of Court, thus differentiating the New York situation from that prevailing in South Carolina not only as to suits of the present character but also suits for an injunction within the provisions of Section 567 of the Code hereinabove referred to.
It appears to me that the reason and justice of the matter was met by the South Dakota Supreme Court cases cited in *Page 372 the majority opinion. See also 34 C.J., 1084. The added facts that the appellant does not claim that he has any reasons for resisting the granting of leave by the Court, or any defense to the action, other than the considerations which were set forth in his return and answer, and which are palpably insufficient, lend emphasis to the desirability of applying the rule that it is "in the interest of the practical administration of justice" to dispose of the case in the action now before the Court, rather than invite the institution of a new suit on the judgment in question under the provisions of Section 745 of the Code.
On the merits, that is to say, on the question whether the respondent was entitled to judgment on the pleadings, I adopt the conclusions of the Circuit Judge.