Lee v. Neal

• Decision Date: 30 June 1958
• Docket Number: No. 17441,17441
• Court: South Carolina Supreme Court
• Parties: James W. LEE, Respondent, v. E. Y. NEAL and Henry Smith, d/b/a Palmet-to Drive-In Theatre, Appellant.

Page 291

104 S.E.2d 291

233 S.C. 206

James W. LEE, Respondent, v. E. Y. NEAL and Henry Smith, d/b/a Palmet-to Drive-In

Theatre, Appellant.

No. 17441.

Supreme Court of South Carolina.

June 30, 1958.

Willcox, Hardee, Houck & Palmer, W. Laurier O'Farrell, Florence, for appellant.

Kirven & Shetley, Charles E. Smith, Florence, for respondent.

MOSS, Justice.

The plaintiff brought this action to recover damages for alleged injuries sustained by him when he was stung by insects while a patron at a Drive-In Movie Theatre, owned and operated by the defendants, said theatre being located near the City of Florence and in the County of Florence, South Carolina. The action was instituted in Darlington County, and the defendant, Henry Smith, was personally served with the summons and complaint in that county. An answer, dated October 9, 19578 was filed, which was in form a general denial. It was later learned that the defendant, Henry Smith, was actually a resident of Florence County. The other defendant, E. Y. Neal, was a resident of North Carolina and was not served with the summons and complaint.

The affidavit of counsel for the defendants states that he learned on March 20, 1958, that the defendant, Henry Smith, was a resident of the County of Florence, South Carolina, and on the next day a notice of motion was served to change the venue of this case from the County of Darlington to the County of Florence, on the grounds that the defendant, Henry Smith, was a resident of Florence County and that the convenience of witnesses and the ends of justice would be promoted by the change. The defendant, Henry Smith, also noticed a motion that he would move for an order permitting him to file an amended answer denying that he was a resident of the County of Darlington.

The motions were heard by the Honorable J. Woodrow Lewis upon affidavits submitted in behalf of the defendants. The plaintiff introduced no evidence to the contrary. Judge Lewis granted that portion of the motion which allowed the defendant, Henry Smith, to amend his answer by denying that he was a resident of the County of Darlington. He denied the motion for a change of venue saying 'I have concluded that in the exercise of the Court's discretion the motion should be denied.' This appeal followed.

It is the rule in this State where an action is brought against a nonresident and a resident of this State, in which the venue is laid in a county other than that of the resident, the action, on motion, should be transferred to the county of the resident for trial. Barfield v. Southern Cotton Oil Co., 87 S.C. 322, 69 S.E. 603; Tucker v. Ingram, 187 S.C. 525, 198 S.E. 25. It is undisputed in the record that E. Y. Neal, one of the defendants, is a resident of the State of North Carolina and has not been served with the summons and complaint in this action. Henry Smith, the other defendant, is a resident of Florence County, South Carolina, and hence, if timely motion was made, it was proper for the court to transfer this case to the county of the residence of Henry Smith.

This Court has held in numerous cases that the right of a defendant in a civil action to a trial in the county of his residence, pursuant to Section 10-303, 1952 Code of Laws of South Carolina, is a substantial right. Wood v. Lea, 219 S.C. 409, 65 S.E.2d 669; Dison v. Wimbly, 230 S.C. 187, 94 S.E.2d 877; Perdue v. Southern Railway Co., 232 S.C. 78, 101 S.E.2d 47.

The plaintiff's position is that Henry Smith, the defendant, having answered generally before moving to change the venue has waived his right to do so.

In the case of Witherspoon v. Spotts & Co., 227 S.C. 209, 87 S.E.2d 477, 478, an action for death was brought in Clarendon County against one Hunter, a resident of Lancaster County, and Sharpe Construction Co. of Clarendon County. Hunter moved to change the venue to the county of his residence, contending that Sharpe Construction Co. was an immaterial defendant, joined only to retain venue in Clarendon County. The Lower Court found as a fact that Sharpe Construction Co. was an immaterial defendant and ordered the venue changed to Lancaster County. The plaintiff appealed this order on the ground that Hunter,...