The first opinion was delivered by
Mr. Justice Pope.
By agreement, the five above stated cases are to be heard together on appeal npon 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 1896, in the Court of Common Pleas for Orange-burg 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 defendaut 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. Alber-gotti, 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 statements 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. Hlbert Steadman, swore to, or attempted to swear to, said affidavits, in which said confessions of judgment are based, before J. D. Milhous, who was at that time, to wit: on March 3d, 1894, a United States officer. Sixth. Because the state-[26]*26merits on which each of the judgments were confessed have 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 county of Orangeburg, and, also, that the defendant, J. B. Stead-man, in each of those five cases, was not a resident of the county of Orangeburg, but was a resident of the county of Barnwell when such confessions of judgment were made by him, a judgment could be confessed by said J. B. Steadman before the clerk of the court of common pleas for Orange-burg County? The Circuit Judge having decided that such confessions of judgment were null and void, because there was no jurisdiction in such Court of Common Pleas for Orangeburg County, he very properly declined to consider any other questions presented for his consideration.
1 The holders of these judgments by confession have appealed from this decree; and at the same time, under a proper notice therefor, the respondent insists that this Court shall decide that the judgment of Judge Benet is sustainable under the second, third, fourth, fifth, and sixth grounds set out in their notice, which grounds we have already set out in this opinion. Inasmuch, however, as we shall hereafter show, there was no error in the decision of the Circuit Judge as to the matter of jurisdiction of the Court of Common Pleas for Orangeburg County, we might, on that ground, decline to dispose of these grounds of the respondent, before considering the question • of jurisdiction. It is quite true, that the respondents have pursued the plan laid down in the case of Wienges v. Cash, 15 S. C., 44, for in that case, at page 57, it is said: “Prom the judgment below both parties have appealed, though the notice of appeal on the part of the plaintiff ought, properly, to have been a notice that if this Court should find itself [27]*27unable to sustain the judgment below on the ground upon which it is rested by the Circuit Judge, then plaintiff would insist that such judgment should be sustained on the grounds mentioned in his notice of appeal.” The practice herein suggested and approved by this Court has, since that time, been followed in this State. An investigation of the case cited will show that Judge Kershaw had actually passed upon the grounds included in respondent’s notice in that case, and had overruled them. It is thus patent that each of those matters — any one of which would have been a good cause to upset the confession of judgment attacked in that case — had been passed upon in the Circuit Court, and went to the merits thereof. In the case at bar, however, as before stated, Judge Benet refused to consider any other question than that of jurisdiction. We are inclined to hold, under this notice of respondent, that we ought not to pass upon these questions, for the reason that they have not been considered on the Circuit. Of course, this remark of ours must not be understood to embrace any question of jurisdiction; such questions can be raised in this Court for the first time, and notwithstanding the Circuit Judge has not passed upon them. Having thus declined to pass upon the questions raised by the respondent, we will now consider the grounds of appeal presented by the appellants.
The grounds, though three in number, raise, and are intended to raise, but the single question of jurisdiction. The report of the case should set out the decree of Judge Benet and the exceptions thereto.
2 It has been suggested in the argument of the appellants in this Court that: “I. Under the Constitution, there is but one Court of Common Pleas established in the State, the same Court sitting in the different territorial divisions of the State. 8. That the Court of Common Pleas is a court of general jurisdiction, including all civil matter, except such as are excluded by the Constitution or statutes of the State. S. That the limitation upon the jurisdiction of the Court of Common Pleas, with refer-[28]*28etice to the trial of certain actions in the county where the defendant resides, applies only to actions at law or equity. A That a confession of judgment is not an action within the meaning of the statute, but is expressly provided the creditor as the means of securing his debt, without resort to an action. 5. That the Court of Common Pleas being a court of general jurisdiction, without limitation as to confession of judgment, such confessions may be made in said Court in any county of the State.” It needs but a glance at the provisions of the Constitution, and those of the statutes touching the Court of Common Pleas, to see that there is provided but one such Court for the entire State. See sections 1, 16, and 17 of article 4 of the Constitution of the State, adopted in 1868. Of course, it is therein provided that such Court shall sit in each county of the State. Such Court is one of general jurisdiction. See Barrett v. Watts, 13 S. C., 441; Ex parte Lewie, 17 S. C., 153; Chafee v. Postal Tel. Company, 35 S. C., 378. Nor is it at all difficult to see that a confession of judgment is not an action, for the statute which provides for it is clear and distinct that such is taken without action. The serious trouble grows out of the position that the limitations upon the jurisdiction of the Court of Common Pleas apply only to actions at law or in equity, and do no apply to confessions of judgment.
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The first opinion was delivered by
Mr. Justice Pope.
By agreement, the five above stated cases are to be heard together on appeal npon 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 1896, in the Court of Common Pleas for Orange-burg 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 defendaut 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. Alber-gotti, 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 statements 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. Hlbert Steadman, swore to, or attempted to swear to, said affidavits, in which said confessions of judgment are based, before J. D. Milhous, who was at that time, to wit: on March 3d, 1894, a United States officer. Sixth. Because the state-[26]*26merits on which each of the judgments were confessed have 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 county of Orangeburg, and, also, that the defendant, J. B. Stead-man, in each of those five cases, was not a resident of the county of Orangeburg, but was a resident of the county of Barnwell when such confessions of judgment were made by him, a judgment could be confessed by said J. B. Steadman before the clerk of the court of common pleas for Orange-burg County? The Circuit Judge having decided that such confessions of judgment were null and void, because there was no jurisdiction in such Court of Common Pleas for Orangeburg County, he very properly declined to consider any other questions presented for his consideration.
1 The holders of these judgments by confession have appealed from this decree; and at the same time, under a proper notice therefor, the respondent insists that this Court shall decide that the judgment of Judge Benet is sustainable under the second, third, fourth, fifth, and sixth grounds set out in their notice, which grounds we have already set out in this opinion. Inasmuch, however, as we shall hereafter show, there was no error in the decision of the Circuit Judge as to the matter of jurisdiction of the Court of Common Pleas for Orangeburg County, we might, on that ground, decline to dispose of these grounds of the respondent, before considering the question • of jurisdiction. It is quite true, that the respondents have pursued the plan laid down in the case of Wienges v. Cash, 15 S. C., 44, for in that case, at page 57, it is said: “Prom the judgment below both parties have appealed, though the notice of appeal on the part of the plaintiff ought, properly, to have been a notice that if this Court should find itself [27]*27unable to sustain the judgment below on the ground upon which it is rested by the Circuit Judge, then plaintiff would insist that such judgment should be sustained on the grounds mentioned in his notice of appeal.” The practice herein suggested and approved by this Court has, since that time, been followed in this State. An investigation of the case cited will show that Judge Kershaw had actually passed upon the grounds included in respondent’s notice in that case, and had overruled them. It is thus patent that each of those matters — any one of which would have been a good cause to upset the confession of judgment attacked in that case — had been passed upon in the Circuit Court, and went to the merits thereof. In the case at bar, however, as before stated, Judge Benet refused to consider any other question than that of jurisdiction. We are inclined to hold, under this notice of respondent, that we ought not to pass upon these questions, for the reason that they have not been considered on the Circuit. Of course, this remark of ours must not be understood to embrace any question of jurisdiction; such questions can be raised in this Court for the first time, and notwithstanding the Circuit Judge has not passed upon them. Having thus declined to pass upon the questions raised by the respondent, we will now consider the grounds of appeal presented by the appellants.
The grounds, though three in number, raise, and are intended to raise, but the single question of jurisdiction. The report of the case should set out the decree of Judge Benet and the exceptions thereto.
2 It has been suggested in the argument of the appellants in this Court that: “I. Under the Constitution, there is but one Court of Common Pleas established in the State, the same Court sitting in the different territorial divisions of the State. 8. That the Court of Common Pleas is a court of general jurisdiction, including all civil matter, except such as are excluded by the Constitution or statutes of the State. S. That the limitation upon the jurisdiction of the Court of Common Pleas, with refer-[28]*28etice to the trial of certain actions in the county where the defendant resides, applies only to actions at law or equity. A That a confession of judgment is not an action within the meaning of the statute, but is expressly provided the creditor as the means of securing his debt, without resort to an action. 5. That the Court of Common Pleas being a court of general jurisdiction, without limitation as to confession of judgment, such confessions may be made in said Court in any county of the State.” It needs but a glance at the provisions of the Constitution, and those of the statutes touching the Court of Common Pleas, to see that there is provided but one such Court for the entire State. See sections 1, 16, and 17 of article 4 of the Constitution of the State, adopted in 1868. Of course, it is therein provided that such Court shall sit in each county of the State. Such Court is one of general jurisdiction. See Barrett v. Watts, 13 S. C., 441; Ex parte Lewie, 17 S. C., 153; Chafee v. Postal Tel. Company, 35 S. C., 378. Nor is it at all difficult to see that a confession of judgment is not an action, for the statute which provides for it is clear and distinct that such is taken without action. The serious trouble grows out of the position that the limitations upon the jurisdiction of the Court of Common Pleas apply only to actions at law or in equity, and do no apply to confessions of judgment. Our Code defines an action to be “an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Such an action is commenced by the service of a summons. See section 120 of the Code. In an action pleadings are requisite. See sections 161 to 176, inclusive. A judgment is defined thus by section 266 of the Code: “A judgment is the final determination of the rights of the parties in the action.” Now, let us reproduce the sections of our Code that authorize a confession of judgment: “Section 383. A judgment by confession maybe entered without action, either for money due or to become [29]*29due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed in this chapter. Section 384. A statement in writing must be made and signed by the defendant, and verified by his oath, to the following effect: 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it be money due, or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due. Section 385. The statement may be filed with the clerk of the court of common pleas, or with a trial justice, if the amount for which judgment is confessed shall not exceed the sum of $100, who shall enter judgment indorsed upon the statement for the amount confessed, with $5 for plaintiff’s attorney’s costs, when the confession is entered by an attorney, and the usual fees provided by law to the clerk of the court of common pleas, or trial justice, as the case may be, for entering up judgment and issuing executions in any case, together with any necessary disbursements by the plaintiff. The statement and affidavit, with the judgment indorsed thereon, shall thereupon become the judgment roll. Executions may be issued and enforced thereon, in the same manner as upon judgments in other cases in such Courts.” * * * It is certain that the judgment, in the case of a confession, has all the attributes of a judgment obtained in an action: it is to be enrolled in the abstract of money judgments in the clerk’s office; it supports an execution; it is capable of being abstracted, under the Code, and sent to other counties than that wherein it was obtained; and it can be renewed just as other judgments. King v. Belcher, 30 S. C., 381. These observations, however, do not reach the difficulty to be overcome in the denial of jurisdiction. Our Code has been repeatedly construed, so far as section 146 is concerned, to be mandatory in requiring the service of summons, out of the Court of Common Pleas, to be served on the defendant in the county where he resides, and our decisions have re[30]*30peatedly held that a judgment in an action began in a different comity from that wherein the defendant resides is a nullity. Trapier v. Waldo, 16 S. C., 276; Steele v. Exum, 22 S. C., 276; Bacot v. Lowndes, 24 S. C., 392; Ware v. Henderson, 25 S. C., 385. This is so because the law is expressly so written. But in the sections governing confessions of judgment there is not one word of a positive enactment requiring the same, in order to be valid, to be taken before the clerk of the court of common pleas of the county where the defendant resides. The Circuit Judge relied upon the presence of the definite article “the” in section 385 of our Code (which we have heretofore quoted), in the sentence, “The statement may be filed with the clerk of the court of common pleas,” &c., as fixing the territorial limit of the Court of Common Pleas to that of the county where the defendant resided; and he also laid great stress upon the language of Mr. Freeman, in his work on Judgments (section 547, third edition): “Judgments by confession are in no wise exempt from the rule applicable to other judgments — that, to be valid, they must be entered in the 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 jtidgment in a contested action'1'1 (italics ours). The learned author contented himself by quoting the case of Lanning v. Carpenter, 23 Barbour, 402, in support of this proposition, so suggests the appellant here, thereby intimating that the author’s views on this subject are bottomed upon this citation alone, but this is not of necessity true. We could just as well suppose that a jurist, who boldly advances a proposition of law, has beforehand thoroughly digested the principles which of necessity enter in to make it sound, and merely used the case cited as an illustration. But leaving this matter in abeyance, so to speak, we would ask, are there [31]*31not some expressions used in section 385 of our Code which necessitate the construction adopted by the Circuit Judge? It will be recalled that we have already adverted to the language of this section to show that there may be renewals of these judgments of confession. It seems to us that this judgment having been entered up in Orangeburg County, when it is desired to be renewed, the residence of the defendant being in Barnwell County, how could it be renewed by the service of a summons upon the defendant? Bear in mind, this is a judgment for money alone; that it must be renewed as all other judgments are; that a summons must be served upon the defendant in order to do this; that under the law it (the summons) can only issue out of the Court of Common Pleas in the county where he resides; and that this defendant resides in Barnwell County, and not in Orangeburg County. This is only a test of the law, but does it not show that of necessity the law must be construed as requiring the judgment confessed, in order to be valid, to be entered up in the Court of Common Pleas for Orangeburg County? It seems so to us. The appellant relies, however, with great confidence, on the case of Martin & Co. v. Bowie, 3 Hill, 225, as establishing the proposition that in our own State, while construing that provision of the act passed in 1821 which required the confession of judgment to be entered in the county (then.district) wherein the defendant resided, it was held, that having entered the confession in a county different from that wherein he resided, the Court held that such was the personal privilege of the defendant, and that it was competent for him to waive the same; and that having done so, the judgment was valid, even against other creditors of the defendant who sought to set it aside. The law in South Carolina prior to the adoption of the Code was that, while the process was usually served upon the defendant in the county (then district) where he resided, yet he could be served if found in some other county; or he might accept service. Marshall v. Drayton et al., 2 N. & McC., 25, Statutes 1736, [32]*321737. So that when this fact is remembered, to wit: that a person might waive, or have waived for him, his right to be served with process while in the county where he resided, it is not difficult to see how the case of Martin & Co. v. Bowie, supra, was decided as it was. It is not so now in this State. It is imperative, as we before remarked, in order that the Court of Common Pleas shall acquire jurisdiction in all cases, except in those cases specially excepted in sections 144 and 145 of the Code, to have the trial in the county where the defendant resides. These views, in addition to those expressed by the Circuit Judge, seem to sustain the point that there is something in the provisions of the Code which require that a confession of judgment, to be valid, must be taken in the county where the defendant resides.
We cannot agree that the Court of Common Pleas, although a court of general jurisdiction, is without limitation as to confessions of.judgment, and, therefore, that they can be made in any county in the State. Our reasons are stated in the views we have hereinbefore set forth.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
Justice Gary concurs in opinion of Justice Pope.