Ernandez v. Miller
| Decision Date | 17 April 1958 |
| Docket Number | No. 17416,17416 |
| Court | South Carolina Supreme Court |
| Parties | Bunnie ERNANDEZ, as Administrator of the Estate of David Harold Ernandez, Deceased, Respondent. v. Gary T. MILLER, Appellant. |
Charles W. McTeer, Chester, for appellant.
Hemphill & Hemphill, Chester, for respondent.
Plaintiff's intestate, allegedly a guest-passenger in defendant's automobile, was killed on November 18, 1956, when the car overturned and was wrecked near Lando, in Chester County. This action, for his wrongful death, was commenced on September 1, 1957, in the Court of Common Pleas for Chester County. Defendant moved for change of venue to Sumter County, upon the ground that at the time of the commencement of the action he was a resident of that county. Appeal is from the order of the Honorable Thomas W. Whiteside, Special Judge, denying that motion.
In support of his motion, appellant offered:
1. His own affidavit, dated September 24, 1957, in which, admitting that he formerly resided in Chester County, where his mother lives, he states: that he is, and has been for the past five years, in the United States Air Force; that he is presently stationed at Shaw Field in Sumter County, and resides in Dalzell in that county, where he has resided for some months and was residing at the commencement of the action; that prior to obtaining an apartment in Sumter County he spent practically all of his off-duty hours at his sister's home in the town of Cayce in Lexington County; and that, while he visits his mother occasionally, he has not been a resident of Chester County for some time and was not a resident of that county on September 1, 1957.
2. Affidavit of appellant's wife, Mary Ellen Miller: that she and appellant were married about June 1, 1957, and thereupon went to Dalzell, where they lived in the W. W. Brabham Apartments until October 1, 1957, when her health required her to return to the home of her parents in Chester County; that she expects to return to Sumter County to live with appellant when her health has improved; and that she knows that prior to their marriage appellant spent practically all of his off hours with his sister in Cayce.
3. Affidavit of appellant's sister, Mrs. Patsy Ruth Dawkins: that when her husband, who is now stationed at Shaw Field, returned from overseas duty in 1955, and established their home in Cayce, appellant made his home and place of residence with her there, and continued to reside with her until June 1, 1957, when he married and moved to Dalzell.
4. Affidavit of W. W. Brabham: that he owns the W. W. Brabham Apartments in Dalzell, and that on or about June 1, 1957, appellant rented from him an apartment, in which appellant and his wife lived until October 1, 1957.
Contra, respondent offered the following:
1. Affidavit of the Judge of Probate for Chester County, to which were attached certified copies of the marriage license issued to appellant and his wife-to-be, dated May 11, 1957, and of the application and affidavits incident to its issuance. In the application, dated May 8, 1957, appellant gave his address as Lando, South Carolina; and in his affidavit, dated May 11, 1957, he stated under oath that his place of residence was Lando, South Carolina.
2. Affidavit of the County Treasurer of Chester County, showing that appellant was charged with tax on his automobile and with poll tax for 1956 in the tax book for School District No. 31 of Chester County, in which district Lando is located; and that on July 29, 1957, the 1956 tax on his automobile, then delinquent, was paid, and the poll tax was abated because the taxpayer was in the service of his country.
3. Affidavit of the deputy clerk in the office of the County Auditor for Chester County, verifying from the records of that office that for the year 1956 appellant's...
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Sanders v. Allis Chalmers Mfg. Co.
...of the trial Judge. Shelton v. Southern Kraft Corp., 195 S.C. 81, 10 S.E.2d 341, 129 A.L.R. 1280. In the case of Ernandez v. Miller, 232 S.C. 634, 103 S.E.2d 263, 264, we said: 'The issue of residence under the venue statute, Code 1952, Section 10-303 ('residence' here meaning domicile, as ......
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Nagy v. Nagy-Horvath
...factual determination by the trial judge is conclusive unless without evidentiary support. Miller v. Miller, supra; Ernandez v. Miller, 232 S.C. 634, 103 S.E.2d 263 (1958). Concluding that the evidence amply supported the lower court's finding, we accordingly hold the trial judge's action i......
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Miller v. Miller
...section is a factual one, and its determination by the trial judge is conclusive unless without evidentiary support. Ernandez v. Miller, 232 S.C. 634, 103 S.E.2d 263. The first question then is whethr there was any evidence to sustain the factual finding by the lower court that the defendan......