American Agricultural Chemical Co. v. Thomas

*357 Mr. Associate Justice Fishburne delivered the majority Opinion of the Court. 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 tile 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, cham *358 bers, “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 the 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. 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 *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 mo tion, 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 has 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 *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 á 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 the twenty-year statute, Section 387. Generally, an action cannot properly be commenced until all of the essential elenients of the cause of action are in existence — that is, until the cause of action is complete, the subsequent occurrence of a material fact will not avail in maintaining it. The rights and liabilities of the parties, that is, their rights to an action for judgment or relief, depend upon the facts as they existed at the time of the commencement of the action, and not at the time of trial. 1 Am. Jur. § 59, p. 451. The conditions precedent to maintaining an action on a judgment detailed in Section 354 operate on the right itself. Compliance with these conditions, specifically attached to the right, constitutes an essential element of the cause of action, and partakes of the subject-matter. It therefore follows that plaintiffs cause of action was not complete, and its right to sue did not accrue until the statutory requirements had been fully performed. An examination of the reported cases indicates that this question has not arisen in many of the state Courts. Early cases in New York, later overruled, hold that failure to obtain leave of the Court to bring an action upon a judgment was a mere irregularity which might be waived, and that *361 leave might be granted nunc pro tunc. Lane v. Salter, 27 N. Y. Super. Ct., 239; Finch v. Carpenter, 5 Abb. Prac., 225; Church v. Van Buren, 55 How. Prac., 489. Later cases 'from New York hold that the granting of leave to commence an action upon a judgment is a jurisdictional prerequisite. Farish v. Austin, 25 Hun., 430; Cook v. Thurston, 18 Misc., 506, 42 N. Y. S., 1084. In Cook v. Thurston, 18 Misc., 506, 42 N. Y. S., 1084, the Court said: “Under Section 71 of the Code of Procedure as it stood in 1871, a conflict of authority existed on the question whether commencing the action without leave was merely an irregularity, curable by an order granted nunc pro tunc, as held in Church v. Van Buren, 55 How. Prac., 489; or whether granting leave was a jurisdictional prerequisite, as held subsequently to the above-cited case in Farish v. Austin, 25 Hun., 430, wherein the court says on page 433 : ‘The authority to sue was at the very basis of the right to sue.’ Said section 71 provided: ‘No action shall be brought * * * without leave of the court for good cause shown, on notice to the adverse party.’ Since those decisions were made said section 71 has been superseded by section 1913 of the Code of Civil Procedure, which provides that such action cannot be brought unless ‘the court * * * has previously made an order granting leave to bring it.’ The requirement here made that the order shall be previously granted approves the doctrine laid down in Farish v. Austin, supra, and settles the question.” Upon the identical question, the South Dakota Court (Stoddard Mfg. Co. v. Mattice, 10 S. D., 253, 72 N. W., 891), held that failure to obtain leave to sue constituted a mere irregularity, and was not jurisdictional. The Court cited in support of the above holding the New York case of Church v. Van Buren, supra, which, as hereinbefore pointed out, was subsequently overruled by the New York Court. In the later South Dakota case of Wright v. McKenzie, 55 S. D., 300, 226 N. W., 270, 271, the Court was asked to *362 review its previous decision in Stoddard Manufacturing Company v. Mattice, supra, and to hold that leave to bring suit on a domestic judgment of the Circuit Court is jurisdictional. A reconsideration was refused upon the following grounds: “Respondent argues that leave to bring suit on a domestic judgment of the circuit court is jurisdictional, but so long a time has passed since the decision of Stoddard Mfg. Co. v. Mattice, without any modification of its language by subsequent decisions or legislative enactment, the court is now reluctant to reconsider the holding that leave to bring such an action is not jurisdictional and that failure to comply with the statute is a mere irregularity. In this conclusion the court is influenced by the possibility that, in a period of 32 years, titles may have changed hands, and defects therein may have been ignored in reliance upon the decision that lack of leave to sue on a domestic judgment is not jurisdictional.” From which it would seem that if the matter had been one of first impression, the Court would have reached a different conclusion. The jurisdiction of a Court over the subject-matter of an action depends upon the authority granted to it by the Constitution and laws of the State, and is fundamental. Objection to such jurisdiction may be made at any time during the progress of the action, and cannot be waived or conferred by consent. Senn v. Spartanburg County, 192 S. C., 489, 7 S. E. (2d), 454; Ladshaw v. Hoskins, 204 S. C., 346, 29 S. E. (2d), 480; Rosamond v. Lucas-Kidd Motor Co., 182 S. C., 331, 189 S. E., 641. It was held in Hunter v. Boyd, 203 S. C., 518, 28 S. E. (2d), 412, that since lack of jurisdiction of the subject-matter of an action cannot be waived even by consent, lack of jurisdiction can be and should be taken notice of by the Supreme Court ex mero mo tu. It is suggested in the decree of the Circuit Court that when this matter was heard before it in response to the rule to show cause, of July 22, 1944, the twen *363 ty-year period within which the action could be brought had expired, and that it would have been unjust to the plaintiff to have permitted the defendant to raise the issue that the plaintiff had failed to comply with the statutory requirements detailed in Section 354. But it should be borne in mind that the defendant had nothing to do with the creation of this situaion, nor did he contribute thereto in any way. In our opinion, the action should have been dismissed for lack of jurisdiction of the subject-matter. In view of this disposition of the case, the other questions raised by the appeal need not be considered. Judgment reversed. Messrs. Associate Justices Stukes, Taylor and Ox-NER concur.