dissenting. The facts in this case are so fully and fairly stated in the opinion of Mr. Justice Gary, as to supercede the necessity for repeating them here. I desire, however, to call attention to two facts which appear in “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, *153heard 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, in his argument here, had very properly conceded that the motion should be regarded as heard at chambers, and two of his grounds of appeal are based upon that assumption. 1
Under the conceded facts, it seems to me that only two questions are presented for decision. 1st. Whether an order of reference, in an action for the foreclosure of a mortgage of real estate, “to take and report the testimony,” can be granted by a judge at chambers, without the consent of the parties. 2d. Whether his honor, Judge Watts (who is the judge of the fourth judicial circuit), while holding a special term of the Court of Common Pleas under an assignment made by the Chief Justice, had jurisdiction to grant the order appealed from.
The first question is concluded by the statutory provisions upon the subject, especially when read in the light of the decisions construing such statutory provisions. Section 2122 of the General Statutes of 1882 (originally enacted in 1868, 14 Stat., 134, and now incorporated in the Revised Statutes of 1893 as section 2244,) reads as follows: “The Circuit Courts shall be deemed always open for the purpose of issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules, and other proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits; and it shall be competent for any judge of the said courts, upon reasonable notice of the parties, in the clerk’s office or at chambers, and in vacation as well as in term, to make, direct, and award all such process, commissions, and interlocutory orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court.” Section 402 (originally section 417) of the Code reads as follows: “(1) An application for an. order is a motion. (2) Motions may be made to a judge or justice out of court, except for a new trial on the merits.” *154These provisions have been construed, in Edwards v. Edwards, 14 S. C., 11, to authorize a judge, at chambers, to grant a motion for leave to file a supplemental complaint, provided notice of such motion be given; in Clawson v. Hutchison, 14 S. C., 517, not to authorize a judge, at chambers, to grant a motion for a new trial practically on the merits; in Cureton v. Dargan, 12 S. C., 122, to authorize a judge, at chambers, to grant a motion to dissolve an attachment; in Seigler v. Coward, 24 S. C., 119, to authorize a judge, at chambers, to grant a motion to vacate a warrant issued by the clerk to enforce an agricultural lien. In that case, after referring to the provisions of section 402 of the Code, as above set out, the following significant language is found: “As this was clearly not a motion for a new trial on- the merits, we think that the statute, in terms, authorized it to be heard at chambers”- — -clearly implying that a motion for any purpose, except for a new trial on the merits, might be heard at chambers, unless it be a motion for a perpetual injunction (Hornesby v. Burdell, 9 S. C., 308), which, of course, involves the merits. And, finally, in Ellen v. Ellen, 26 S. C., 99, it was held that a judge, at chambers, has the power to grant a motion to amend the complaint. In that case, Judge Simpson, C. J., in delivering the opinion of the court, after setting out the provisions of section 2112 of the General Statutes of 1882, as above, uses this language, which is very appropriate to the present inquiry: “This section, it is true, does not expressly give to a judge, at chambers, the power to amend a complaint; but, we think, the general power given to make, direct, and award process, commissions, and interlocutory orders and other proceedings whatever, preparatory to the hearing of all cases pending in the courts, necessarily includes the power to amend a complaint. The terms, other proceedings whatever, are very broad and extensive, and were, no doubt, intended to include all orders necessary to prevent delay at the hearing.” It seems to me very clear that the very object of the section was to enable a Circuit Judge, at *155chambers, to grant all such preliminary orders as were necessary or calculated to facilitate the hearing of cases upon their merits, when the proper time arrived for that purpose; and surely an order of reference to take and report the testimony, in an action for the foreclosure of a mortgage, was just such an order as was there contemplated. I do not see, therefore, how it can be doubted that his honor, Judge Aldrich (who is the judge of the second circuit, wherein the action arose and was pending), would have had full power to grant the order in question.
This brings us to the second inquiry above stated, viz: whether Judge Watts, while holding the court for Barnwell County, in the second circuit, under an assignment made by the chief justice, had the power to grant the order appealed from. The question is likewise concluded by the express terms of the statute upon the subject. Sec. 2116 of the General Statutes of 1882, incorporated in the Revised Statutes of 1893 as sec. 2248, reads as follows: “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.” Now it is not and cannot be disputed, that at the time of granting the order in question, Judge Watts was holding the court for the county of Barnwell, one of the counties embraced within the second circuit, “pursuant to the provisions of the law of this State;” and if so, then by the express terms of the section above quoted, he was “invested with powers equal to-those of the judge” of the second circuit, Judge Aldrich; and if, as has been shown, Judge Aldrich would have had the ■ power to grant the order in question, it is impossible for me to understand why Judge Watts did not have a like or equal power.
It is said, however, that section 28 of the Code of Pro*156cedure, providing for the holding of special or extra terms of the Courts of Common Pleas or General Sessions, “whenever so ordered, either by the chief justice or by the Circuit Judge at the time holding the Circuit Court of the county for which the extra term may be ordered,” contains the following provisions, which, it is claimed, must be regarded as a limitation upon the general powers conferred upon the Circuit Judge, by the terms of the section of the Revised Statutes above quoted, when only an extra term is being held. The provision thus relied upon reads as follows: “No cause shall be tried at any extra term of the Court of Common Pleas for any circuit unless the said cause shall have been previously docketed upon some one of the calendars of the last preceding regular term of said court.” Of this provision two things must be observed: 1st. That the limitation therein contained applies as well to the judge of the circuit within which such extra term is being held, as to the judge of any other circuit, who may be assigned to hold such extra terms; and hence the provisions cannot be regarded as making any distinction whatever between the judge of the circuit and the judge of some other circuit, who may be assigned to hold such extra term. 2d. And what is more important — the limitation is confined, in express terms, to one single thing — the trial of any cause not previously docketed on some one of the calendars of the preceding regular term, '•'•no cause shall be tried" &c., and there is not a word limiting the power of the judge holding the extra term to grant motions, &c., previously conferred, in express terms, by the section of the Revised Statutes above quoted. So that while, under the limitation contained in section 28 of the Code, Judge Aldrich, while holding an extra term of the court for any county within his circuit, could not try any cause unless it had been previously docketed on some one of the calendars of the last preceding regular term, there is nothing forbidding him to hear motions and grant orders at chambers; and if there is nothing forbidding him to do so, then there *157is nothing to forbid the judge of any other circuit, while holding a court within the second circuit, who is expressly “invested with powers equal to those of the judge of such circuit” for hearing all such motions and granting all such orders at chambers as the judge of the second circuit might hear and grant at chambers.
I am unable, therefore, to concur in the conclusion that Judge Watts had no jurisdiction to grant the order appealed from, and, on the contrary, think his order should be affirmed.