Dennis v. McKnight

• Decision Date: 17 July 1931
• Docket Number: 13205.
• Citation: 159 S.E. 557,161 S.C. 213
• Parties: DENNIS v. McKNIGHT et al.
• Court: South Carolina Supreme Court

159 S.E. 557

161 S.C. 213

DENNIS v. McKNIGHT et al.

No. 13205.

Supreme Court of South Carolina

July 17, 1931

Appeal from Common Pleas Circuit Court of Berkeley County; M. M Mann, Judge.

Action by Ella Mae Dennis, administratrix, against Glennie D. McKnight and others. From an order changing the venue of the case, defendants appeal.

Affirmed.

See also 159 S.E. 555.

J. D E. Meyer, of Charleston, M. E. Zeigler and Adam H. Moss, both of Orangeburg, N. N. Newell and Lewis G. Fultz, both of Moncks Corner, and C. T. Graydon, of Columbia, for appellants.

W. C Wolfe and E. C. Mann, both of Orangeburg, and M. S. Connor of St. George, for respondent.

COTHRAN J.

This is an appeal from an order of his honor, Judge Mann, dated December 23, 1930, changing the venue of the case from Berkeley to Calhoun county.

The plaintiff instituted the action in the court of common pleas of Berkeley county, where all of the defendants resided, on September 2, 1930, for damages on account of the alleged wrongful homicide of her husband, Edward J. Dennis, at Moncks Corner on July 24, 1930, of whose estate she had been appointed administratrix. The defendants filed an answer to the complaint containing a general denial, and the pleadings were filed in the office of the clerk of court of Berkeley county. Before the case was docketed, plaintiff, on December 1, 1930, gave notice of a motion for a change of venue; the grounds of which were thus stated in the notice: "Such motion will be made upon the ground that the plaintiff cannot have a fair and impartial trial of her aforesaid case in Berkeley County, in said State, and because justice will be promoted by such change, and because a fair and just trial can only be secured by transferring the place of trial of said case to another county as provided by law." The motion was noticed to be heard before Judge Mann at St. Matthews on December 13, 1930; by agreement of counsel the hearing was continued to December 23d. The transcript of record contains the following statement: "*** But the defendants did not thereby waive any right to object to the jurisdiction of the court or judge, or any then existing right; the agreement being only as to the time of appearing before the court."

The matter then came up for a hearing before Judge Mann, at his chambers in Orangeburg, on December 23, 1930. It is assumed that the hearing was at Orangeburg for the convenience of all, the defendants however waiving no objections. At that hearing the defendants interposed the following objections, which were all overruled by Judge Mann:

"(1) That the Court and the resident Judge did not have jurisdiction at Chambers to consider the motion for a change of venue but that the motion should be taken up in open Court at a regular term thereof and the act of 1925 is not sufficient to abrogate the provisions of section 34 of the Code.

"(2) That since Judge Mann had already decided that change of venue was proper on motion of the State over the objection of the defendants in the criminal cases then he was disqualified from hearing a similar motion for change of venue in the civil cases arising out of the same facts and circumstances.

"(3) That as the cause had not been docketed in Berkeley County Judge Mann was without jurisdiction to grant a change of venue until the cause was regularly docketed on the calendar in Berkeley County.

"(4) That the Court had no jurisdiction to change the venue where the effect of the change would be to hasten and advance the trial before it could be regularly reached for trial in the County in which the suit was originally brought.

"(5) Because the change of venue at this time was in effect a pre-judging of conditions which might exist in Berkeley County in April, 1931, and that said motion was premature."

Many affidavits were submitted, and after argument Judge Mann signed the following order:

"The plaintiff makes a motion in this case for a change of venue or place of trial of this cause from Berkeley County to some other county in the First Judicial Circuit of this State.

"The motion is made upon due written notice and the grounds are stated in the notice.

"The defendants interpose an objection to the jurisdiction of the Court to hear such motion, but after hearing counsel I have overruled such objections to my jurisdiction to hear and pass upon the motion thus made.

"After hearing affidavits pro and con, and after hearing counsel fully upon the motion, I have concluded that the venue or place of trial of this case should be changed.

"So, it is upon motion of counsel for the plaintiff,

"Ordered, that such motion be and hereby is granted, and that the venue or place of trial of this case be, and the same is hereby changed from Berkeley County to Calhoun County, in said State; and that the Clerk of Court of Berkeley County do transmit the entire record of this case together with a certified copy of this order to the Clerk of Court of Calhoun County, so that the said cause may be docketed for trial in Calhoun County instead of in Berkeley County, in said State."

From it the defendants have appealed upon exceptions which fairly raise the matters hereinafter discussed and decided.

It will be observed that the grounds of the motion...