(dissenting).
The majority opinion does violence to constitutional law precedent in this state concerning equity jurisdiction.
Although admittedly grounded in equity, by agreement this case was treated as though trial by jury was a matter of right pursuant to SDCL 15-6-39(c), which reads:
In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right, (emphasis supplied).'
That statute is similar to R.C.1919 § 3564, which read:
When the appeal is on questions of fact, or on questions of both law and fact, the trial in the circuit court must be de novo and shall be conducted in the same manner as if the case and proceedings had originated in that court. All ques*162tions of fact arising upon such appeal shall be, at the request of any party to such proceedings, triable by jury, and general or special verdicts may be required by the court, which shall have the same force and effect as verdicts in actions at law.
In State v. Nieuwenhuis, 49 S.D. 181, 207 N.W. 77 (1926), we declared R.C.1919 § 3564 unconstitutional insofar as it allows “actions of law” effect to be given a jury verdict in equity cases. In Nieuwenhuis, we adopted this reasoning of the Supreme Court of Michigan construing a similar statute.
‘The functions of judges in equity eases in dealing with them is as well settled a part of the judicial power, and as necessary to its administration, as the functions of jurors in common-law cases. Our Constitutions are framed to protect all rights. When they vest judicial power they do so in accordance with all of its essentials, and when they vest it in any court, they vest it as efficient for the protection of rights, and not subject to be distorted or made inadequate. The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury. * * *
‘The system of chancery jurisprudence has been developed as carefully and as judicially as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere. The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.’
Id. 207 N.W. at 78 (quoting Brown v. Kalamazoo Circuit Judge, 75 Mich. 274, 42 N.W. 827 (1889)). In Nieuwenhuis, we remanded the case for findings of fact and conclusions of law stating that, as
this action [contest of a lost will] in the circuit court is in equity, governed by the rules of chancery practice, we adopt the reasoning in the case of Brown v. Kalamazoo Circuit Judge, supra, and hold that the verdict of the jury was advisory only, and that the statute concerning the effect of the verdict of the jury, in so far as it applies to actions in chancery, is unconstitutional and void.
Id. 207 N.W. at 79.
For the reasons announced in Nieuwenhuis, and reiterated in In Re Lansing’s Estate, 51 S.D. 615, 216 N.W. 353 (1927), Orr v. Kneip, 287 N.W.2d 480 (S.D.1979), and First National Bank of Beresford v. Anderson, 291 N.W.2d 444 (S.D.1980), the verdict of the jury was advisory only and SDCL 15-6-39(c), insofar as it attempts to give greater effect to jury verdicts in equity actions, is likewise unconstitutional and void. That conclusion is not changed by the parties’ consent to such greater effect because in Nieuwenhuis, Central Loan & Investment Co. v. Loiseau, 59 S.D. 255, 239 N.W. 487 (1931), South Dakota Wheat Growers’ Assn. v. Sieler, 57 S.D. 101, 230 N.W. 805 (1930), and Orr v. Kneip, supra, we have consistently recognized the jurisdictional nature of this equity principle. Jurisdiction over subject matter, as distinguished from jurisdiction over the person, cannot be conferred by consent, submission, or failure to object where it does not otherwise exist. Van Diepen v. Van Diepen, 73 S.D. 366, 43 N.W.2d 499 (1950); O’Neal v. Diamond A Cattle Co., 63 S.D. 481, 260 N.W. 836 (1935); Fergen v. Lonie, 51 S.D. 315, 213 N.W. 720 (1927). And, since a jury verdict on equitable issues is advisory only, the claimed errors of giving or refusing instructions are irrelevant. Because it is the duty and responsibility of the trial court to find the facts and enter conclusions in equitable actions, we are bound to review as if there were no jury. First Nat’l Bank of Beresford v. Anderson, supra; Orr v. Kneip, supra; Lounsberry v. Kelly, 32 S.D. 160, 142 N.W. 180 (1913); First National Bank of Rapid City v. McCarthy, 18 S.D. 218, 100 N.W. 14 (1904).
*163SDCL 15-6 — 2 states: “There shall be one form of action to be known as a ‘civil action.’ The distinction between actions at law and suits in equity, and the forms of all such actions and suits, are abolished in this state.” That statute is not a contemporary legal innovation. It has been codified in essentially its present form since territorial days, 1887 Compiled Laws § 4830; 1887 Civil §§ 33 & 34; 1903 R.C. § 36; 1919 R.C. § 2260; 1939 SDC & 1960 Supp. SDC § 33.0101, and has consistently been interpreted to require one form of action while preserving the inherent substantive principles which underlie and differentiate equity and law. This includes the principle that in a suit in equity a jury’s findings are advisory only. Heiser v. Rodway, 247 N.W.2d 65 (S.D.1976); Holzworth v. Roth, 78 S.D. 287, 101 N.W.2d 393 (1960); Parsons v. City of Sioux Falls, 65 S.D. 145, 272 N.W. 288 (1937); First National Bank of Miles City, Mt. v. Erling Bros., 61 S.D. 364, 249 N.W. 681 (1933); Byrne v. McKeachie, 29 S.D. 476, 137 N.W. 343 (1912). (See annotations in above codes for reference to earlier cases.)
In In Re Okeson’s Estate, 52 S.D. 387, 217 N.W. 676 (1928), this court again faced an appeal of an equitable action where the trial court had entered its judgment based on a general jury verdict and special interrogatories, unsupported by findings and conclusions. The Okeson’s court acknowledged that the trial court’s failure to enter findings was not urged as error on appeal. Likewise neither party in this case raised that issue on appeal. Nevertheless this court is required, on its own motion if necessary, to determine jurisdictional questions. In Re Mackrill’s Add’n, 85 S.D. 196, 179 N.W.2d 268 (1970); Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117 N.W.2d 92 (1962); Tri-State Milling Co. v. Bd. of Co. Comm. for Pennington Co., 75 S.D. 466, 68 N.W.2d 104 (1955). The jurisdictional question in this case is whether the trial court was empowered to enter a judgment on a verdict in an equity action. The answer is no.
Findings and conclusions in equity actions are statutorily mandated. SDCL 15-6-52(a) provides, in part: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall unless waived as provided by § 15-6-52(b) find the facts specially and state separately its conclusions of law thereon[.]” SDCL 15-6-52(b) states: “Findings of fact and conclusions of law are waived by failing to appear at the trial, by consent in writing filed with the clerk, by oral consent in open court, or by entering into a stipulation of facts for consideration by the court.”
The SDCL 15-6-52(a) requirement that waiver of findings and conclusions is accomplished only by compliance with SDCL 15-6-52(b) is fully supported by ease law. In Central Loan & Investment Co., supra 239 N.W. at 495, we said: “A jury verdict, the legal effect of which is advisory only, will not support a judgment. . . . [I]f the determination of the jury is advisory only (State v. Nieuwenhuis and accompanying cases cited supra) . . . the judgment must be supported by findings of fact and conclusions of law duly made and entered by the court . .. unless findings are waived in the manner provided by section 2527, R.C. 1919 [presently codified in SDCL 15-6-52(b) ].” To the same effect is Bunnell v. Kindt, 83 S.D. 377, 159 N.W.2d 923 (1968), Nelson v. Nelson, 82 S.D. 404, 147 N.W.2d 1 (1966), and Chandler v. Kennedy, 8 S.D. 56, 65 N.W. 439 (1895). The record here is devoid of any waiver of findings of fact and conclusions of law.
The majority decision clearly erodes equity jurisdiction as it is firmly imbedded in our constitution and settled case law. As above noted, Nieuwenhuis was based squarely on the Michigan case of Brown v. Kalamazoo Circuit Judge. The Supreme Court of Michigan in Wolf v. Walch, 385 Mich. 253, 188 N.W.2d 544 (1971), eloquently reaffirmed the principles stated in Brown and the importance of safeguarding the integrity of equity jurisdiction in state courts.
The original edition of Pomeroy’s ‘Treatise on Equity Jurisprudence’ was published in 1881. The author at that time warned the profession forcefully that *164what then was termed the ‘Reformed Procedure’ (recognized loosely today as the ‘union of law and equity,’ the ‘blended procedure,’ or the ‘procedural merger’) would unless controlled result inevitably in the gradual suppression and final disappearance of equitable principles and doctrines and the supplanting thereof ‘by the more inflexible and arbitrary rules of the law; until in time equity would practically cease to be a distinctive part of the national jurisprudence.’
⅝ * * * *
‘(1) Most important, the distinctions between law and equity must continue to be recognized for the purpose of preserving constitutional rights to trial by jury in legal matters and trial by court in equity matters. Brown v. Kalamazoo Circuit Judge, 1889, 75 Mich. 274, 42 N.W. 827. (emphasis added.)
‘(2) The substantive elements of the cause of action — that is, the facts which must be proved to establish a claim or defense — and the kind of remedy the court can give must still be determined by reference to the substantive law of the actions in law and equity as they previously existed.’ (emphasis in original.)
* * # * * *
So long as the Brown Case stands as it does — and should — on our books, the right and duty of the trial court to hear and determine this equity case to decretal judgment, with or without an advisory jury, is constitutionally sound law in our State. In Michigan, unlike the Federal practice with its involvement of specific acts of Congress and the Seventh Amendment, we determine properly under our Constitution the extent of equity’s jurisdiction, duties and powers, (emphasis added.)
Id. 188 N.W.2d at 547, 548, 550 (footnotes omitted).
Our State Constitution provides: “The right of trial by jury shall remain inviolate and shall extend to all cases at law ... . ” S.D.Const. art. VI, § 6 (emphasis added). That provision differs markedly from the jury trial provision in the Federal Constitution.1 As is made plain in Wolf, the interpretation federal courts give to Rule 39(c) is not binding on states with different constitutional provisions and case law based thereon, and which are not controlled by acts of Congress.
Accordingly, this case should be remanded with directions for the trial court to enter findings of fact and conclusions of law and judgment.
. U.S.Const. amend. VII reads: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.