Miller v. Miller
| Decision Date | 21 June 1966 |
| Docket Number | No. 18526,18526 |
| Citation | 248 S.C. 125,149 S.E.2d 336 |
| Court | South Carolina Supreme Court |
| Parties | Sue Carol MILLER, Respondent, v. George T. MILLER, Appellant. |
John Gregg McMaster and Robert J. Thomas, of Tompkins, McMaster & Thomas, Columbia, for appellant.
H. V. Sandifer, Lexington, for respondent.
The defendant has appealed from an order denying his motion for a change of venue of this civil action from Lexington County to Richland County. The motion was made upon the grounds that (1) the defendant was a resident of Richland County, and (2) the convenience of the witnesses and the ends of justice would be promoted by the change. This appeal involves a review of the ruling by the lower court as to both grounds of the motion.
The first issue concerns the place of residence of the defendant and its effect upon the venue of the action. The plaintiff was the wife of the defendant and brought this action on June 1, 1965 to recover for injuries allegedly sustained by her in a collision of defendant's automobile in Lexington County on February 20, 1961, while she was a passenger in the vehicle. Venue of the action was laid in Lexington County upon the basis that the defendant was at that time a resident of Nashville, Tennessee. If the defendant was a non-resident of the State when the action was instituted, the plaintiff clearly had the right, under Section 10--303 of the 1962 Code of Laws, to initially designate the county in which the action would be tried. This section provides, in part, that if none of the defendants in an action reside in this State, the action may be tried in any county which the plaintiff shall designate in the complaint.
The lower court found as a fact that the defendant was a resident of the State of Tennessee, and not of Richland County, at the time of the institution of the action; and accordingly held that the action was properly brought in Lexington County under Section 10--303. It is well settled that the issue of residence under the foregoing 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 defendant was a non-resident when the present action was instituted.
The matter was heard by the trial judge upon affidavits submitted by the parties. While the defendant states that he was a resident of Richland County, and was temporarily in Nashville, Tennessee, on June 1, 1965, the showing on the part of the plaintiff was that she was the wife of the defendant; that the had been separated for about 2 1/2 years prior to May 1, 1965, when they resumed living together; that, in order to get away from both their families, they moved from Columbia, South Carolina, to Nashville, Tennessee; that they established their residence in Nashville at 702 Reed Street, Apartment 2; that the defendant took employment with Thoni Oil Company in that city; and that both intended to permanently reside there. There is a further affidavit that the defendant told a friend, about May 1, 1965, that he was leaving Columbia to live elsewhere, and that a few days later the friend received a letter from defendant, written from Nashville.
The Summons and Complaint in this action was served on defendant, through the South Carolina Highway Department, under Section 10--431 of the 1962 Code of Laws, by mailing copies thereof to him at his place of employment in Nashville, Tennessee, where the defendant signed a return receipt showing delivery to him by mail on June 3, 1965.
About two weeks after the Summons and Complaint were received by the defendant in Nashville, he returned to Columbia, South Carolina, for the purpose of trying to get his old job back.
The question of a person's place of residence is largely one of intent to be determined under the facts and circumstances of each case. The record here does not show conclusively that the defendant's domicil was in ...
To continue reading
Request your trial
-
Holden v. Cribb
...759 (1979) (quoting Gasque v. Gasque, 246 S.C. 423, 426, 143 S.E.2d 811, 812 (1965)) (citations omitted); see also Miller v. Miller, 248 S.C. 125, 149 S.E.2d 336 (1966). "The `rationale for Homestead exemptions is well established: to protect from creditors a certain portion of the debtor's......
-
In re Vance
...are the determining factors." Holden v. Cribb, 349 S.C. 132, 140, 561 S.E.2d 634, 639 (Ct. App. 2002) (quoting Miller v. Miller, 248 S.C. 125, 129, 149 S.E.2d 336, 339 (1966)).By what is apparently the majority rule, the word "reside" or "residence" as used in statutes . . . denotes the pla......
-
Bouvy v. N. W. White & Co.
...be disturbed on appeal except upon a clear showing of abuse of discretion amounting to manifest error of law. Miller v. Miller, 248 S.C. 125, 129, 149 S.E.2d 336, 339 (1966). In support of its motion the defendant submitted the affidavits of seven prospective witnesses, each of whom says th......
-
Ferguson v. Employers Mut. Cas. Co.
...of each case. The act and intent as to domicile, not the duration of the residence, are the determining factors. Miller v. Miller, 248 S.C. 125, 149 S.E.2d 336. The finding of the trial judge is conclusive thereon unless there is a total failure of testimony to support it. St. Clair v. St. ......