46 S.C. 149 | S.C. | 1896
Lead Opinion
The opinion of the court was delivered by
This is an action brought to fore
The following statement of facts is set forth in the “Case:” At the time of the service of the summons and complaint the Court of Common Pleas for Barnwell County would have been in session but for the illness of his honor, R. C. Watts, presiding judge of the second circuit, the date of said opening of the Court of Common Pleas for said term being July 11th, 1895. On the 5th day of August, 1895, his honor, Henry Mclver, Chief Justice of the Supreme Court of this State, ordered an extra term of the Court of Common Pleas to be held for Barnwell County, and assigned his honor, R. C. Watts, to hold said term. * * * His honor, R. C. Watts, did, on the 19th day of August, 1895, open said Court of Common Pleas for Barnwell County for the transaction of all such business as came within the meaning of said order; that on the said 19th day of August, 1895, plaintiff’s attorney served upon defendant’s attorney a notice of a motion of reference before his honor, R. C. Watts, to be heard on the 23d day of August, 1895; and on said date, in open court, his honor, R. C. Watts, heard said motion, and, against the objection of defendant’s (appellant’s) attorney, granted an order of reference in said cause to A. H. Patterson, master of said county, to take testimony and report same to said court; that said cause had been docketed after the opening of the special term of court without the knowledge or consent of the defendant’s attorney; the notice of appeal was duly given, and the exceptions were duly served, and this appeal is now before this court upon all of the papers in said case. The said motion was noticed, to be heard by his honor, the Circuit Judge, at his chambers, in Barnwell, wherein the land sought to be foreclosed is situate, and, upon four days’
We will now consider the question of jurisdiction which confronts us at the threshold in this case. The defendant, E. V. Phillips, appealed to this court on the following exceptions: 1st. “Because said cause was not properly upon the docket of the Court of Common Pleas for trial; and that said cause was improperly docketed, having been docketed without the knowledge or consent of the defendant, and after the opening of the special term called by his honor, Henry Mclver, Chief Justice of this State. 2d. Because his honor erred in granting said order of reference at chambers, against the earnest protest of defendant and without the consent of either of said defendants. 3d. Because his honor, having been appointed to hold a special term of court for Barnwell County, had no authority to grant an order in this case, this cause not having been docketed for trial at the July term of court. 4th. Because the said Circuit Judge had no power to grant an order of reference in foreclosure causes at chambers without the consent of such defendants as have answered. 5th. Because said Circuit Judge had no power to hear, in open court, any motion in any cause which was not properly docketed and ready for trial.”
It is the judgment of this court, that the order appealed from be reversed.
Dissenting Opinion
dissenting. The facts in this case are so fully and fairly stated in the opinion of Mr. Justice Gary, as to supercede the necessity for repeating them here. I desire, however, to call attention to two facts which appear in “Case” as to which there is no dispute: first, that the motion was noticed to be heard at chambers, “after all the pleadings had been made up,” of which due notice was given; second, that the motion'“was heard as a chambers motion,” for, although the motion was, in fact,
Under the conceded facts, it seems to me that only two questions are presented for decision. 1st. Whether an order of reference, in an action for the foreclosure of a mortgage of real estate, “to take and report the testimony,” can be granted by a judge at chambers, without the consent of the parties. 2d. Whether his honor, Judge Watts (who is the judge of the fourth judicial circuit), while holding a special term of the Court of Common Pleas under an assignment made by the Chief Justice, had jurisdiction to grant the order appealed from.
The first question is concluded by the statutory provisions upon the subject, especially when read in the light of the decisions construing such statutory provisions. Section 2122 of the General Statutes of 1882 (originally enacted in 1868, 14 Stat., 134, and now incorporated in the Revised Statutes of 1893 as section 2244,) reads as follows: “The Circuit Courts shall be deemed always open for the purpose of issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules, and other proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits; and it shall be competent for any judge of the said courts, upon reasonable notice of the parties, in the clerk’s office or at chambers, and in vacation as well as in term, to make, direct, and award all such process, commissions, and interlocutory orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court.” Section 402 (originally section 417) of the Code reads as follows: “(1) An application for an. order is a motion. (2) Motions may be made to a judge or justice out of court, except for a new trial on the merits.”
This brings us to the second inquiry above stated, viz: whether Judge Watts, while holding the court for Barnwell County, in the second circuit, under an assignment made by the chief justice, had the power to grant the order appealed from. The question is likewise concluded by the express terms of the statute upon the subject. Sec. 2116 of the General Statutes of 1882, incorporated in the Revised Statutes of 1893 as sec. 2248, reads as follows: “Every judge, 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, and may hear and determine all causes and motions, and grant all orders in open court or at chambers which it is competent for the judge residing in such circuit to hear, determine or grant, any law, usage or custom to the contrary notwithstanding.” Now it is not and cannot be disputed, that at the time of granting the order in question, Judge Watts was holding the court for the county of Barnwell, one of the counties embraced within the second circuit, “pursuant to the provisions of the law of this State;” and if so, then by the express terms of the section above quoted, he was “invested with powers equal to-those of the judge” of the second circuit, Judge Aldrich; and if, as has been shown, Judge Aldrich would have had the ■ power to grant the order in question, it is impossible for me to understand why Judge Watts did not have a like or equal power.
It is said, however, that section 28 of the Code of Pro
I am unable, therefore, to concur in the conclusion that Judge Watts had no jurisdiction to grant the order appealed from, and, on the contrary, think his order should be affirmed.