129 S.E. 207 | S.C. | 1925
Lead Opinion
August 13, 1925. The opinion of the Court was delivered by This action was commenced on October 28, 1924, by the service of a summons and complaint on the respondent by the appellant, in response to a notice served on her by the respondent condemning her land in the Town of Edgefield for a right of way for a public street.
Application for an injunction and a restraining order was made before Hon. J.W. DeVore at his chambers, who issued an order restraining and enjoining the respondent, and requiring it to show cause, if any it could, why the same should not be made permanent, returnable before the presiding Judge at Lexington, S.C. November 10, 1924. At the hearing at Lexington there appeared a Special Judge to hold the Court for the County, and his commission from the Governor stated, with powers for that County only. Appellant objected to the jurisdiction *386 of the Court; the Special Judge held that he had jurisdiction, and heard the case. He held the return sufficient, dissolved the injunction, and dismissed the summons and complaint, although the venue was for Edgefield County. No answer has been made to the summons and complaint, the case had not been docketed in Edgefield County or Lexington County, the Special Judge, therefore, was without jurisdiction to hear the matter.
Notice of appeal to this Court was duly served upon the respondent, and has been filed with the Clerk of this Court.
Exceptions 3 and 4 must be sustained under the authorities of Dallas et al. v. Inman et al.,
MESSRS. JUSTICES COTHRAN and MARION, and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.
MR. CHIEF JUSTICE GARY disqualified.
Concurrence Opinion
I concur in the opinion of Mr. Justice Watts holding that the Special Judge, Hon. Thos. F. McDow, was without jurisdiction at chambers to dismiss the complaint, under the authority of the cases of Dallas v. Inman,
But there is an important question raised by the exceptions which is of general interest and should be decided. The decision of that question renders a decision of the propriety of revoking the temporary restraining order and refusing an injunction pendente lite unnecessary, if not improper — matters not touched upon in the leading opinion.
The Town of Edgefield proposed to open a street through the property of the plaintiff, and in October, 1924, served upon her a notice stating that the town required a right of way for a public street over her land, particularly describing *387 the direction and extent of the proposed acquisition, naming six commissioners appointed by the town to assess the damages, inviting her to make a similar appointment within ten days, and notifying her upon her neglect or refusal to do so the commissioners appointed by the town would proceed with the assessment.
Immediately thereafter, on October 28, 1924, the plaintiff instituted this action to enjoin the town from proceeding with the proposed condemnation. The grounds of her objection are stated in the most general terms, of confiscation, taking of property without due process of law, irreparable injury, damage, loss of land, and deprivation of her rights as citizen and taxpayer. She alleges in her complaint that she has made a reasonable offer of sale to the town, which has been refused.
Upon the verified complaint, his Honor, Judge DeVore, Circuit Judge of that circuit, on October 28, 1924, issued a rule requiring the Town of Edgefield to show cause "before the presiding Judge of the Court of Common Pleas in and for Lexington County, S.C. at Lexington Court House, said State, at 10:00 o'clock a.m., or as soon thereafter as counsel could be heard, on the 10th day of November, 1924," why an injunction pendente lite should not be issued as prayed for, and restraining the town, in the meantime, from prosecuting the condemnation proceedings. This order was signed upon application of counsel for the plaintiff.
The rule was made returnable before the presiding Judge of the regular term of the Court of Common Pleas for Lexington County at Lexington, which County is in the same judicial circuit as Edgefield. On account of the death of Hon. I.W. Bowman, Circuit Judge, who had been assigned to hold said regular term, the Governor appointed Hon. Thos. F. McDow "Special Judge to hold the Court of Common Pleas at Lexington, beginning November 10, 1924, vice Judge I.W. Bowman, deceased." *388
The counsel for the plaintiff made return to the rule, and appeared upon the day appointed at Lexington before Special Judge McDow. He objected to the jurisdiction of the Special Judge to hear the matter upon the ground that his jurisdiction was limited to matters within the bounds of Lexington County. The objection was overruled; the Special Judge proceeded to hear the matter, and on November 12, 1924, filed a decree adjudging that the return was sufficient, revoking the temporary restraining order of Judge DeVore, and dismissing the complaint.
In view of the provisions of Section 42, Code Civ. Proc. 1922, it is questionable whether the Governor has the power to appoint a Special Judge to hold the regular term of the Court for a given county. It provides that:
"Whenever any Circuit Judge, pending his assignment to hold the Courts of any circuit, shall die, * * * in the event that there be no other Circuit Judge disengaged, then the Governor * * * shall immediately commission as Special Judge such persons [person?] learned in the law as shall be recommended to hold the Courts of such circuit. * * *"
It appears that in such case the appointment can be made only for the Courts of the circuit, and not for the Court of a particular county. Quaere de hoc.
It is clear, however, that if the appointment be valid for the Court of a particular county, the jurisdiction of a Special Judge is not more extensive than that of a Special Judge to hold a special term of Court for such county. The jurisdiction of Special Judge McDow in this case, to hear matters not within the jurisdiction of the Court of Common Pleas for Lexington County, could only be sustained, if at all, under Section 36, which provides:
"Every Judge [regular or special, I interpolate] while holding the Circuit Court for any circuit pursuant to the provisions of the law of this State, shall be invested with powers equal to those of the Judge of such circuit. * * *" *389
If Judge Bowman, who had been assigned to hold the courts of the Eleventh Circuit had been on duty, he could have heard the matter; if a Special Judge had been appointed in his place to hold the courts of the circuit, he could have heard it; but Special Judge McDow was neither the resident Judge, nor the assigned presiding regular Judge, nor a Special Judge appointed to hold the courts of the circuit.
I think, therefore, that Special Judge McDow was without jurisdiction to hear the matter; and that his order must be reversed and the case remanded to the Court of Common Pleas for Edgefield County for such further action as may be deemed proper, as if the matter had not been brought before the Special Judge at all.
MESSRS. JUSTICES WATTS and MARION, and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.
