
    TURNER v. FOREMAN.
    Judgment — Jurisdiction— Circuit Judge — Chambers.—A Circuit Judge has no jurisdiction, at chambers, to set aside a judgment on the ground of excusable neglect on the part of defendant — construing Code, sec. 402, subd. 2; sec. 195; Rev. Stat., 2247.
    Before Aedrich, J., Aiken,
    November, 1895.
    Reversed.
    Motion at chambers by J. B. Foreman to set aside judgment obtained against him by W. H. Turner by default. Motion granted. Plaintiff appeals.
    
      Mr. O. C. Jordan, for appellant,
    cites Code, sec. 195; Dimer v. Malone, 24 S. C., ; Gillam v. Arnold., 35 S. C., ; Croker v. Allen, 34 S. C., ; Prince v. Dickson, 39 S. C., ; Charles v. Jacobs, 5 S. C., 348; Clawson v. Hutchison, 14 S. C., ; Code, 402.
    
      Messrs. Crojt & Chafee, contra,
    cite Code, secs. 402, 273; 2 Rap. Law Die., 1293; Charles v. Jacobs, 5 S. C., 348; Clawson v. Hitchison, 14 S. C., 517; Bank v. Mellett, 22 S. E. R., 444; Voorhees’ N. Y. Code, sec. 400, sub. 2; Lawles v. Mayor of N. Y, 5 Abb., 325; Main v. Pope, 16 Hun., 271; Ayer v. Caill, 9 Hun. Pr., 593; Robinson v. Bugen, 10 Ind., 402.
    July 9, 1896.
   The opinion of the Court was delivered by-

Mr. Justice Gary.

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 judgment on the ground of excusable neglect on the part of the defendant.

' 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 and ought to be set aside; and, upon such proof being made, the presiding Judge is hereby authorized to vacate and set aside said judgment, and to order a new trial de novo.” * * * This statute was incorporated in the Revised Statutes of 1872 as section 2, chapter CV., of part III. (page 497). The Code was also adopted as a part of the act revising the statute in 1872, and the provision hereinbefore mentioned is set out as subdivision 2 of section 417. In construing the act of 1869 and the said section of the Code, the Court, in Clawson v. Hutchinson, 14 S. C., 517, decides: 1st. That the only authority a Circuit Judge had for hearing motions for new trials out of court, either upon the merits or otherwise, was derived from the act of 1869. 2d. That the foregoing section of the Code must be construed in connection with the act of 1869, and is a limitation upon the powers of a Circuit Judge to hear a motion at chambers for a new trial itpon the merits. Thus showing that the power to hear motions for new trials, even when not on the merits, was not derived from the section of the Code. Therefore, when the act of 1869 was repealed in 1880, Circuit Judges no longer had authority to hear motions at chambers for new trials, either upon the merits or otherwise.

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 the Code also tends to show that the Circuit Judge did not have jurisdiction to hear the motion. That section is as follows: “The Court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or by an order enlarge such time, and upon such terms as may be just,- at any time within one year after notice thereof, relieve a party from a judgment order or other proceeding taken against him, through his mistake, inadvertence, surprise or excusable neglect.” * * * The Court is empowered to do these acts, but not the Circuit Judge at chambers. The spirit of all legislation on the subject is to prevent Circuit Judges at chambers from setting asidjudgments, thus rendering them unstable and uncertain.

It is the judgment of this Court, that the order of the Circuit Judge be reversed.  