Adams v. Fripp

• Decision Date: 03 August 1917
• Docket Number: 9789.
• Citation: 94 S.E. 109,108 S.C. 234
• Parties: ADAMS ET AL. v. FRIPP ET AL.
• Court: South Carolina Supreme Court

94 S.E. 109

108 S.C. 234

ADAMS ET AL. v. FRIPP ET AL.

No. 9789.

Supreme Court of South Carolina

August 3, 1917

Petition for Rehearing Dismissed November 14, 1917.

Appeal from Common Pleas Circuit Court of Richland County; J. W. De Vore, Judge.

Action by E. C. L. Adams and others against W. C. Fripp and others. From an order denying a change of venue, the defendants other than Fripp, appeal. Reversed, with directions.

James Simons and Mitchell & Smith, all of Charleston, and Benet Shand & McGowan, of Columbia, for appellants.

Lyles & Lyles and Nettles & Tobias, all of Columbia, for respondents.

GAGE J.

The appeal by all the named defendants save one is from an order of the circuit court, wherein the court refused to change the venue from Richland to Charleston county.

The case arises out of the sale of an extensive pecan grove situate in Charleston, and owned formerly by the late Dr John S. Horlbeck, to a company of gentlemen resident in and around Columbia in Richland county, calling themselves the South Atlantic Pecan Company. Dr. Horlbeck is now dead, and his widow, Mrs. Elizabeth Horlbeck and his son, Fred H Horlbeck, both defendants, are his duly constituted legal representatives. The defendant Haselden married a daughter of Dr. Horlbeck. The other defendant Fripp is the storm center of this motion.

The plaintiffs allege that Fripp was the agency employed by Dr. Horlbeck, through whom Dr. Horlbeck and Haselden committed a fraud on them by deceiving them into buying the grove. The case does not set out all of the contents of the complaint, but it does state that the action is for $250,000 damages to the plaintiffs arising out of the sale and the fraud connected with it.

The Horlbeck defendants allege that Fripp was a party acting with the Columbia men, and ought to be a plaintiff if a wrong has been done; and that the plaintiffs have only named Fripp as a defendant in order to lay the venue in Richland, as Fripp resides there and all the plaintiffs live there. The case does not set out what matter Fripp answered; it only appears that he did plead. He made no affidavit on the motion.

The first suggestion of the respondents is that the order of the circuit court is not subject to appeal, and that because the motion was only to change the venue in order to promote "the convenience of witnesses and ends of justice," and of that the circuit court was the exclusive judge, unless the error of the court is so manifest as to make the exercise of the court's discretion an error of law.

If the respondents' premise is right, then the conclusion is right, but the premise is not right, for, while the motion was made on the ground stated, it further noticed the plaintiffs that "moreover the defendants [the Horlbecks] are the real defendants," etc. And nearly all the proof of the movants was directed to show that Fripp had no connection with the sale except as he acted for the plaintiffs and as one of them. That was the vital issue before the court, made so by the testimony. If the testimony is manifestly true, then "the county designated for [the place of trial] * * * in the complaint is not the proper county." Subdivision 1, § 176, Code Civ. Proc. 1912.

We have examined the testimony with distinct care, and that makes it altogether plain that Adams, Weston, and Fripp on the one part agreed with John S. Horlbeck on the other part to buy the grove; that Adams, Weston, and Fripp took possession...