
    W. H. & S. D. Goodlett, Executors, vs. Israel Charles and others. Wm. D. Berry vs. Same.
    
      Practice — Buie— Writs and .Process.
    
    A rule to show cause why a judgment should not be vacated, and ordering a stay of execution in the mean time, is not a “writ or other process,” within the Act of September, 1866, “ To alter and fix the times for holding the Courts of Common Pleas in this State.?’
    “Writs and other process” properly embrace those mandatory precepts which issue in the name of the State and under the seal of the Court, and are used chiefly for the purpose of bringing parties, witnesses, jurors, &c., into Court, or for enforcing final judgments. “Rules” are orders of Court made between parties to a cause, or touching the discharge of duty by those engaged in the conduct of its proceedings, either as permanent officers of the Court or as serving therein in some temporary capacity.
    BEFORE MURRO, J., AT GREENVILLE, FALL TERM, 1866.
    The report of bis Honor, tbe presiding Judge, is as follows:
    
      “ In these cases motions were beard and orders granted at Chambers, August 31, 1866, for a rule against plaintiffs requiring them to show cause, at tbe next term of tbe Court of Common Pleas for Greenville District, why tbe judgments and executions in said cases should not be set aside as to certain defendants, for whom, without previous authority or subsequent ratification, service of tbe writs bad been accepted by tbe principal defendant, and meanwhile tbe said judgments and executions were stayed.
    “At this term, tbe plaintiffs, against whom tbe said rules were to have been issued, submitted motions that, inasmuch as nó such rules bad been issued or served upon them, tbe orders granted at Chambers should be rescinded. These motions were resisted upon tbe grounds that tbe Act of tbe Legislature of September 21, 1866, bad delayed tbe returns of tbe rules to Spring Term, ■ 1867, that consequently there bad been no laches on their part, and that I bad no jurisdiction in tbe premises at this term.
    
      “ I thought differently, and granted tbe annexed orders.”
    W. H. & S. D. Goodlett, Exors., vs. Israel Charles et al.
    
      ) Rule to show cause, &c. )
    Tbe defendants having failed to give tbe plaintiffs notice to show cause at this term of tbe Court why tbe service of certain defendants in this case should not be set aside, it is ordered, on motion of Perry & Perry, that tbe order issued by bis Honor Judge Munro in this case at Chambers be rescinded.
    R. MUNRO.
    
      W.D.Berry vs. Israel Charles et al.
    Rule to show cause, &c.
    The defendants in this case having failed to serve the plaintiffs with notice to show cause, &c., it is ordered, on motion of Perry & Perry, attorneys for plaintiff, that tbe order issued by bis Honor Judge Munro be rescinded.
    R. MUNRO.
    Tbe defendants appealed, and now moved this Court to vacate tbe orders made by tbe presiding Judge for rescinding tbe previous orders made by him at Chambers, &c., upon tbe grounds:
    1. Although by said previous orders tbe rules to show cause are made returnable to Pall Term, yet by tbe Act of tbe Legislature of 21st September, 1866, since passed, tbe returns of said, rules are postponed until Spring Term, 1867, and the defendants were therefore not in default in not issuing them to the Pall Term.
    2. According to the provisions of said Act, no motions relative to said rules could properly be entertained by the Court at this time, the rules being processes of the Court in causes of action arising ex contractu.
    
    3. Because his Honor erred in granting the orders to rescind, &c., upon mere motion, without notice to the defendants, or expression of willingness on the part of plaintiffs to have the cases heard on their merits.
    4. Because the presiding Judge had no jurisdiction in the premises at the Pall Term, and no authority to consider the cases or grant the orders.
    
      JElford, for appellants.
    Perry, contra.
   The opinion of the Court was delivered by

Inglis, J.

This Court concurs in the opinion of the Judge below, that the rules to show cause, which on the defendants’ motions had been granted at Chambers, and were returnable in term, were not within the Act of Assembly of September 21, 1866, “To alter and fix the times fo.r holding the Courts of Common Pleas in this State.” (13 Stat. 392.) The second section of that Act directs, “ that all writs and other process of the said Courts, mesne and final, now made returnable to the Pall Terms heretofore established, except mesne process in cases of tort, shall be returnable to the Spring Terms of the Court, in the year of our Lord' one thousand eight hundred and sixty-seven, the same as if already so directed.” The description, “writs and other process,” properly embraces all those mandatory precepts which issue by the authority and in the name of the State, out of any of its Courts, and under the seal of such Court, in the institution and prosecution of judicial proceedings, and are used chiefly for the purpose of bringing parties, witnesses, jurors, &c., into Court, or for the execution of the final judgment attained in the particular proceeding. Thus, it is provided in the Constitution of the State, (Art. 3, Sec. 3,) the style of all process shall be, “ The State of South Carolina.” “A rule ” is an order made by a Court between the parties to a cause before it, or touching the discharge of duty by those engaged in the conduct of its proceedings, either as permanent officers of the Court or as serving therein in some temporary capacity. It is authenticated by the signature of the Judge, or, in certain instances, of the Clerk.

In the cases under review, judgments had been entered up in certain actions previously prosecuted in the Court, and the purpose of the rules made was to set on foot an inquiry into alleged defects in the institution of those actions, with a view ultimately to set aside the judgments. Such an inquiry could with no propriety be said to be the trial of an action arising'ex contractu, so as to come within the intention of the first section of the Act.

The defendants, having wholly neglected to pursue the proceedings which had thus on their motion been authorized, have no just ground to complain that the leave granted therein was, at the time limited by its own terms, withdrawn'. The order staying the executions (for' in so far as it affected the judgments, otherwise than through the executions, it was without authority) was properly rescinded. Inasmuch, however, as the alleged defects in the judgments which were to have been impeached under the rules are so material that, if existing and not corrected, great injustice may be done, and as the defendants, who moved for the rules, may have been, not without some apparent reasdn, misled in their interpretation of a statute then so recently enacted, it is proper that this Court should make such order as will prevent the injury that might result from leaving these judgments undisturbed, to be enforced by execution.

It is ordered that the motions to vacate the orders made in these cases in term be dismissed; but that the defendants in the two judgments, mentioned in the proceedings, now have leave, upon giving due notice to the plaintiffs therein respectively, to move at the next term of the Court for Greenville District, to set aside the said judgments, and that, until the hearing and determinations of such motions, the executions be stayed. If, however, such notice is not given, and the motion here permitted shall not, during the term, be made and brought to a hearing, or continued over by order of the Court, the stay of execution herein ordered shall expire with the term.

Dunkin, C. J., and Wakdlaw, A. J., concurred.

Motion dismissed.  