47 S.C. 31 | S.C. | 1896
The opinion of the Court was delivered by-
The only question raised by the exceptions in this case is, whether a Circuit Judge has jurisdiction at chambers to grant an order setting aside a
' The facts are as follows: .At the September term (1895) of the Court of Common Pleas for Aiken County the plaintiff recovered judgment by default against the defendant for the sum of $2Í4.73. The judgment was based upon a promissory note for $175, given by the defendant to the plaintiff in March, 1894, for guano then purchased" of the plaintiff by the defendant. On the 28th of October, 1895, the defendant obtained a rule against the plaintiff to show cause why the judgment should not, be set aside and the defendant allowed to come in and answer the complaint. The rule was returnable on 2d November, 1895, and was heard upon affidavits.
The ground upon which defendant asked that judgment be set aside was that the service of the summons and complaint upon the defendant was defective and illegal. On hearing the return to the rule, his Honor, Judge Aldrich, granted an order setting aside the judgment, on the ground of excusable neglect on the part of the defendant, and giving the defendant leave to answer the complaint, upon certain conditions mentioned in the order. The respondent contends that subdivision 2 of section 402 of the Code confers jurisdiction on the Circuit Judge to hear such a motion. The subdivision is as follows: “Motions may be made to a-judge or justice out of court, except for a new trial on the merits.” It may be that, standing alone, this would confer jurisdiction to hear a motion like this at chambers. The foregoing provision of the Code must, however, be considered in connection with other legislation on the subject. In 1869 an act was passed providing that: “In case a judgment or decree has been, or hereafter shall be, rendered by a Court of Common Pleas, it shall be lawful for either party, plaintiff or defendant, to move, before the presiding judge of the court in which said judgment 'was obtained, to vacate or set aside said judgment, upon satisfactory proof being made to said judge that said judgment is erroneous
This view was in harmony with section 2247 of the Revised Statutes, which specificall}’- defines the powers of a Circuit Judge at chambers as follows: “The Judges of the Courts of Common Pleas shall have power at chambers to grant writs of prohibition, mandaimis, certiorari, and to hear and determine motions to set aside or stay executions, in the same manner, in every respect, as if the Court was actually sitting; and with the consent of all such adult parties as may have answered, or their attorneys in a cause, and of the guardians ad litem of infants therein, to hear and determine any matter not properly triable before a jury.” * * *
It will be observed that no power is conferred to hear motions to set aside judgments. Bank v. Mellett, 22 S. E. R., 444; Coleman v. Keels, 30 S. C., 614. Section 195 of
It is the judgment of this Court, that the order of the Circuit Judge be reversed.