Simms v. Phillips
| Decision Date | 11 March 1896 |
| Parties | SIMMS v. PHILLIPS et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Barnwell county; R. C Watts, Judge.
Action by Charles Carroll Simms, administrator of the estate of John J. Maher, deceased, against E. V. Phillips and W. H. Kennedy. From an order of reference made by the court at special term defendant Phillips appeals. Reversed.
S. G Mayfield, for appellant.
Bates & Simms, for respondent.
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: In the order of his honor, Chief Justice McIver, 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: (1) "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 McIver, chief justice of this state." (2) "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." (3) "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." (4) "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." (5) "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."
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 order 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.
The facts in this case are so fully and fairly stated in the opinion of Mr. Justice Gary as to supersede the necessity of repeating them here. I desire, however, to call attention to two facts which appear in the 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 heard by the judge while on the bench, yet it was manifest that this was done simply as a matter of convenience. Indeed, the counsel for appellant,...
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The untouchables: the impact of South Carolina's new judicial selection system on the South Carolina Supreme Court, 1997-2003.
...Carter v. Florentine Corp., 423 S.E.2d 112 (1992), Botany Bay Marina, Inc. v. Townsend, 372 S.E.2d 584 (1988), Simms v. Phillips, 24 S.E. 97 (1896); State v. Pickens, 466 S.E.2d 364, 366 n.3 (S.C. 1996), overruling State v. McLaughlin, 38 S.E.2d 492 (2) See S.C. CONST. art. V, [section] 27 ......