Fishburne v. Minott

• Decision Date: 07 November 1905
• Citation: 52 S.E. 646,72 S.C. 572
• Parties: FISHBURNE v. MINOTT et al.
• Court: South Carolina Supreme Court

52 S.E. 646

72 S.C. 572

FISHBURNE v. MINOTT et al.

Supreme Court of South Carolina

November 7, 1905

Appeal from Common Pleas Circuit Court of Dorchester County Dantzler, Judge.

Action by Julian Fishburne against Harriott K. Minott and others. From an order for a change of venue and stay of proceedings plaintiff appeals. Affirmed.

Julian Fishburne, in pro. per. Buist & Buist, for respondent.

JONES J.

The appeal in this case is from an order of Judge Dantzler, dated September 26, 1904, granted at chambers, on the motion and affidavit of defendant G. Herbert Sass, changing the place of trial from Dorchester county, where the action was commenced to Charleston county, providing for the transfer of all the papers filed in Dorchester county, and staying all other proceedings of the court for Dorchester county.

1. The appellant in his first exception contends that the order was erroneous, because no notice of a motion to stay proceedings was given. This is without merit, as notice was given to change the place of trial, and, that being granted, a stay of proceedings in Dorchester county followed as a necessary result.

2. In his second exception appellant contends that the affidavit upon which the order was based does not show that a fair and impartial trial cannot be held in Dorchester county. That is true, but the notice was not based upon that ground, and no suggestion of that ground was made anywhere.

The third exception alleges that the notice of the motion was insufficient, and that it should have been given 10 days to be heard before a judge sitting in regular term, not at chambers. This exception is, no doubt, based upon section 2735 of the Civil Code of 1902, which requires 10 days' notice of a motion to change the venue on the ground that a fair and impartial trial cannot be had in the county where the action was commenced, and that the application must be made to the judge sitting in regular term. But the motion in this case, as already said, was not made on that ground, and is not governed by section 2735, Civil Code, but by section 147, Code Civ. Proc. 1902, and by section 403 of said Code. Section 147 provides that the court may change the place of trial in the following cases: "(1) When the county designated for that purpose in the complaint is not the proper county. (2) When there is reason to believe that an impartial trial cannot be had therein. (3) When the convenience of witnesses and the ends of justice would be promoted by the change." Section 403 provides that, when a notice of a motion is necessary, it must be served four days before the time appointed for the hearing. As the motion was not made on the ground stated in subdivision 2 above, no occasion arises in this case to notice the seeming conflict between section 147 of the Code of Procedure and section 2735 of the Civil Code. The notice of motion herein, having been served on September 17, 1904, for the hearing thereof on September 23, 1904, was sufficient. Willoughby v. Railroad Co., 46 S.C. 320, 24 S.E. 308; McFail v. Barnwell, 54 S.C. 370, 32 S.E. 417. That such an order may be granted by a judge at chambers is shown in the case of Utsey v. Railroad Co., 38 S.C. 399, 17 S.E. 141.

3. The motion was made upon the complaint in this case, as well as the affidavit of G. Herbert Sass. The complaint in the tenth eleventh, and twelfth paragraphs thereof attempts to state a cause of action for damages against G. Herbert Sass, master of Charleston county, and H. A. M. Smith, Julian Mitchel, James Simons, and the Fidelity & Deposit Company of Maryland, as sureties on his official bond, for his conduct as such in the cases of Harriott K. Minott v. Julian Fishburne and Mary E. Lowndes v. Julian Fishburne, and that the cause of action arose in Charleston county. The affidavit shows that the individual sureties on the master's bond all live in Charleston county, and that the defendant corporation has its designated place at Charleston, S. C., and that its agent resides there. The "case" does not show expressly that Judge Dantzler based his order on the ground that the county designated for trial in the complaint is not the proper county, but that no doubt influenced his action. Section 145 of the Code of Civil Procedure 1902 provides that an action against a public officer, for an act done by...