56 S.C. 12 | S.C. | 1899
Lead Opinion
The opinion of the Court was delivered by
It is the judgment of this Court, that the order of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. I regret my inability to reach the conclusion of the majority of this Court, and inasmuch as I fear the positions they have taken are unsound in fact and in law, I have deemed it a duty I owe to them as well as to myself to lay bare, briefly, the difficulties in the way of their conclusion, as they appear to my mind. I quite agree with them that the position taken by the respondent, in its-effort to add other reasons than those contained in the order of Judge Ernest Gary to- support his views, is not sound. Equity pleadings, as distinguished from common law pleadings, have been wiped out of existence by the Constitution of this State, so that now the pleadings in Courts of justice in this State are set forth in the Code of Procedure; and it is now useless to speak of “bills of review,” etc., except as by illustration. I also agree with them that section 195 of the Code of Procedure is that under which the Court must administer relief, if any such can be given, to the petitioner here. Section 195, as far as it is concerned with the case as here made, is as follows; “* * * and may also in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party
. It seems to me that too much potency is ascribed to the discretion vested in a Circuit Judge. I can and do’ appreciate the discretion ascribed to such officer in the management of the details of trials of causes pending in such Court; but when solemn rights of property of-parties litigant are concerned, which solemn rights are confided to his discretion in the care thereof, I do not believe the Constitution of the State intended that the decision of the Circuit Judge should be final, and that there should be no> supervisory control over such Circuit Judge by this Court. When the Constitution of this State prescribes the powers of this Supreme Court, it makes no exception in its jurisdiction. Section 4, article V.: “* * * And said Court (Supreme Court) shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law * * and shall constitute ¿ Court for the correction of errors at law under such regulations as the General Assembly may
These matters so appearing to my mind, I must dissent.