Simms v. Phillips , 46 S.C. 149 ( 1896 )

The opinion of the court was delivered by

Mr. Justice Gary.

This is an action brought to foreclose a mortgage executed by the defendant, E. V. Phillips, to the late John J. Maher. The defendant, W. H. Kennedy, was made a party because he claimed some interest in the mortgaged premises subsequent to the rights of the late John J. Maher. The only answer filed in the case was that of E. V. Phillips.

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’ notice to defendant’s attorney, after all the pleadings had been made up, and although heard in open court, was heard as a chambers motion, and without reference to the case being on the calendar.”

1 In the order of his honor, Chief Justice Mclver, it was provided, “that an extra term of the Court of Common Pleas for the county of Barnwell be held for the trial of all cases which may be heard without a jury.” A motion was made to dismiss the appeal in this case on the ground that it was prematurely taken. The appeal presents a jurisdictional question, and therefore it was not necessary for the appellant-to wait until there was a final order of judgment in the case before appealing to this court.

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.”

2 Section 2248 of the Revised Statutes provides: “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.” Section 28 of the Code provides: “No cause shall be tried at any extra term of the Court of Common Pleas of any circuit, unless the said cause shall have previously been docketed upon some one of the calendars of the last preceding regular term of said court.” These two sections should be construed together, and section 28 of the Code must be regarded as a limitation upon the general powers of Circuit Judges, when only an extra term of court is being held. The extra term of court is ordered because the business of the preceding regular term of court has not been finished, and the intention of the legislature was to limit the jurisdiction of the Circuit Judge, when presiding at an extra term of the court, to the unfinished business of the court. We are, therefore, of opinion that the order of his honor, Judge Watts, was appealable, and that the court below was without jurisdiction to grant the or'der of reference. An order has heretofore been filed, refusing the motion to dismiss the appeal.

It is the judgment of this court, that the order appealed from be reversed.