dissenting. I regret my inability to reach the conclusion of the majority of this Court, and inasmuch as I fear the positions they have taken are unsound in fact and in law, I have deemed it a duty I owe to them as well as to myself to lay bare, briefly, the difficulties in the way of their conclusion, as they appear to my mind. I quite agree with them that the position taken by the respondent, in its-effort to add other reasons than those contained in the order of Judge Ernest Gary to- support his views, is not sound. Equity pleadings, as distinguished from common law pleadings, have been wiped out of existence by the Constitution of this State, so that now the pleadings in Courts of justice in this State are set forth in the Code of Procedure; and it is now useless to speak of “bills of review,” etc., except as by illustration. I also agree with them that section 195 of the Code of Procedure is that under which the Court must administer relief, if any such can be given, to the petitioner here. Section 195, as far as it is concerned with the case as here made, is as follows; “* * * and may also in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party *23from a judgment, order or other proceedings taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceedings: * * *” In Garvin v. Garvin, 13 S. C., 162, Mr. Justice Mclver, in discussing the provisions of this section (at that time numbered 197),says : “The provisions of section 197 of the Code are intended to provide relief only in cases where a judgment has been taken against a party through his own mistake, inadvertence, surprise or excusable neglect, and must be confined to such cases * * *” ,Now to the case at bar. The Carolina National Bank-wishes to correct its own mistake, and one of seriousness to it.- It seems that in the year 1893, one George W. Parker wished to have his note for $1,250 discounted for his own use at and by the Carolina National Bank, with Edward R. Arthur as his indorser. This was done, but at the time, in order to secure the payment of the said note so- to- be discounted so as to- save harmless the said E. R. Arthur and the said bank, he (Parker) executed his mortgage of three or more separate parcels of land, which was promptly recorded. In the year 1896, the said Parker wished to borrow some $1,600 from the Homestead Building- and Loan Association of the city of Columbia, S. C. This loan was agreed to, but, as a condition precedent, the association required the said E. R. Arthur to release the lien of the mortgage executed by Parker to- him as aforesaid, so far as the tract of land which Parker was to mortgage to the Homestead Building and Loan Association was concerned. The said E. R. Arthur executed such release of said mortgage upon the mortgage executed by Parker to Homestead Building and Loan Association, and this mortgage was also recorded in the year 1896. During the year 1897, the said E. R. Arthur and the Carolina National Bank released the lien of the mortgage of George W. Parker on all the several separate parcels of land included in said mortgage, except that one which the Homestead Building and Loan Association had a mortgage upon. In the year 1898, the said George W. Parker having made *24default for some months in the payment to' the Homestead Building and Loan Association, its attorney, H. Co-wper Patton, Esq., when about to begin proceedings in foreclosure, spoke to W. G. Childs, who was the administrator, &c., of E. R. Arthur, deceased, as to the mortgage executed by Parker to Arthur, and was referred to his attorney, J. S. Muller, Esq. When he consulted Mr. Muller, as such attorney, he was told that such mortgage was unsatisfied, and had been assigned to' the Carolina National Bank. Accordingly, when the complaint in foreclosure was prepared, Mr. Patton made the said W. G. Childs, as administrator, &c., of E. R. Arthur, and the Carolina National Bank, along with G. W. Parker, defendants. In the eighth paragraph of the complaint he alleged that the liens held by the defendants, W. G. Childs, as administrator, &c., and the Carolina National Bank, were junior to that of the plaintiff. The defendants in question answered through their attorney, J. S. Muller, Esq., admitting the eighth paragraph of the complaint. The reference to the master was had, testimony taken, report made, judgment had thereon on 15th July, 1898, directing sale of the lot of land on first Monday in September, 1898, and also directing that plaintiff be paid before defendant, the Carolina-National Bank. After the lands were advertised, Mr. Muller inquired of W. A. Clark, Esq., as president of the Carolina National Bank, if any attempt should be made by said bank to' bid at said sale, it being a junior encumbrancer, when, to his surprise, the president informed him that-he was mistaken in supposing the lien of the bank was junior to that of the plaintiff, Homestead Building and Loan Association. At once, therefore, papers were prepared to- submit to- the Court to correct the mistake of the Carolina National Bank made by its attorney, J. S. Muller, Esq. On 2d day of September, Judge Ernest Gary made an order requiring the plaintiff, the Homestead Building and Loan Association, to show cause before him why the decree in this cause should not be vacated, or so amended as to adjudge a priority of lien to the petitioner’s *25(the Cárolina National Bank) mortgage over the mortgage of plaintiff, and in the proceeds of the mortgaged premises, and why petitioners should not be allowed to amend its answer, so as to assert the right. In the meantime, sales were restrained. The Homestead Building and Loan Association made return, and submitted affidavits. On 17th September, 1898, the hearing was continued. In January, 1899, the hearing was had before Judge Ernest Gary, who filed his order during that month, denying the petitioner any relief whatsoever. From this order the petitioner has appealed. The majority of this Court has reached the conclusion that the Circuit Judge’s'order should be affirmed; but to this, as before remarked, I am unable to agree. The opinion of the majority is based upon two< propositions— first, that when a power is confided to a Circuit Judge in his discretion, it is only appealable in case it is shown by the appellant that such discretion of the Circuit Judge has been abused; and, second, that the facts as recited in the order of the Circuit Judge show affirmatively that he has not abused his discretion.
. It seems to me that too much potency is ascribed to the discretion vested in a Circuit Judge. I can and do’ appreciate the discretion ascribed to such officer in the management of the details of trials of causes pending in such Court; but when solemn rights of property of-parties litigant are concerned, which solemn rights are confided to his discretion in the care thereof, I do not believe the Constitution of the State intended that the decision of the Circuit Judge should be final, and that there should be no> supervisory control over such Circuit Judge by this Court. When the Constitution of this State prescribes the powers of this Supreme Court, it makes no exception in its jurisdiction. Section 4, article V.: “* * * And said Court (Supreme Court) shall have appellate jurisdiction only in cases of chancery, and in such appeals they shall review the findings of fact as well as the law * * and shall constitute ¿ Court for the correction of errors at law under such regulations as the General Assembly may *26by law prescribe.” This is a cause in equity, and in such causes the Constitution has laid no restrictions upon the power of this Court to hear appeals both as to the law and the fact.- Even if the General Assembly, in section 195 of the Code, should confide the hearing of questions thereunder to the discretion of the Circuit Judge, it could not avail against the right to review on appeal any question of law and fact, because the Constitution has conferred the general jurisdiction, in equity, of all appeals to- this Supreme Court. I admit that in law cases, as distinguished from equity cases, this Court would of necessity be confined to questions of errors of law, because the Constitution has so prescribed. It is for these reasons I cannot ascribe to the decision of Circuit Judges in questions on the equity side of the Court, under section 195 of the Code, the right to- 'be free from a supervisory control of such decisions by this Court, except in those instances where an abuse of discretion by the Circuit, Judge has been made to appear. Nor do- I, in the- second place, agree that there has been no abuse of discretion here. Clearly the petitioning bank has a prior lien upon a lot of land which its attorney, under a mistake, has allowed to be called and acted upon as a junior lien to that set up by the plaintiff, the Homestead Building and- Loan Association. The Carolina National Bank obtained its lien in the year 1893, at which time the mortgage was placed upon the records. It is true, the mortgage was executed to Edward R. Arthur, but in the mortgage it was stipulated that it, the mortgage, was to protect said Arthur and said bank. It is no new equity that ascribes full protection to the bank under a mortgage executed to protect an indorser, even without the formal assignment to said bank of said mortgage by said in-dorser of the maker, Parker. But said indorser did formally assign such mortgage to' the bank. What power did Edward R. Arthur, by his release, possess, in the year 1896, to destroy the lien of that mortgage, so far as the bank was concerned? Now, the only power to cancel or postpone from the lien of that mortgage resided in the Carolina Na*27tional Bank. The said bank was not required to search the records to see what subsequent releases were made of its mortgage by an unauthorized person. As before remarked, Edward R. Arthur had no power to renounce or waive the lien of this mortgage. Therefore, when the Circuit Judge speaks of the duty of this bank to' consult the records to see the release of Arthur, in my opinion, he is in error as to the requirements of the law, in such cases made and provided. In the interview of Mr. Patton and Mr. Muller, there was no reference made to any release of mortgage executed by Edward R. Arthur in favor of the Homestead Building and Loan Association; what passed between them, at such interviews, had reference to an alleged postponement of its lien by the bank. Mr. Muller is positive that from something said by Mr. Patton, he made the mistake in concluding that the bank’s lien was postponed to that of the Homestead Building and Loan Association. Mr. Muller does not say how this postponement of lien by the bank occurred, or was alleged to have occurred. He sought out Col. Jones, as cashier of the Carolina National Bank, and understood Col. Jones to say that the lien of the bank, under its mortgage, had been, postponed to that of the Building and Loan Association. Mr. Muller honestly acted under this mistake, for he put into his answer an admission that the lien of the bank was junior to that of the Homestead Building and Loan Association. Mr. Patton very frankly states in his affidavit that he knew nothing of the Carolina National Bank having any mortgage on this lot of land when he first spoke to1 Mr. Muller. But he was then certainly informed that such bank did have a, lien on such land. How is it that in his complaint he alleges that the lien of this bank was junior to that of the plaintiff? It certainly was a fact in his mind at the time he wrote the complaint that the bank’s lien was junior. Then how is it otherwise explained that Mr. Muller concluded that the lien of the bank, dated in 1893, was junior to that of the Plomestead Building and Loan Association, dated in 1896, than that he got that impression from something Mr. Patton said about *28that matter, while the pleadings show he (Mr. Patton) thought the bank’s mortgage was junior to that of his client? Mr. Muller never spoke to Col. Jones, the cashier of the bank, until after he received his impressions from his interview with Mr. Patton: Is it not, then, evident that the bank is about to lose its security from an honest mistake it made through its attorney ?
These matters so appearing to my mind, I must dissent.