Royal Crown Bottling Co. v. Chandler

• Citation: 90 S.E.2d 489,228 S.C. 412
• Decision Date: 15 November 1955
• Docket Number: No. 17086,NEHI-ROYAL,17086
• Court: United States State Supreme Court of South Carolina
• Parties: ROYAL CROWN BOTTLING COMPANY, Inc., of Anderson, S. C., et al., Appellants, v. William E. CHANDLER et al., Respondents.CROWN BOTTLING COMPANY, Inc., of Spartanburg, S. C., et al., Appellants, v. William E. CHANDLER, Jr., et al., Respondents. T. S. HARTNESS and Sara J. Hartness, Partners, doing business as Pepsi-Cola 7-Up Bottling Company, Appellants, v. William E. CHANDLER, Jr., et al., Respondents. O. W. HARTNESS and George Hartness, doing business as 7-Up Bottling Company of West Columbia, S. C., Appellants, v. William E. CHANDLER, Jr., et al., Respondents. HARTNESS BOTTLING WORKS, Appellant, v. William E. CHANDLER, Jr., et al., Respondents. Henry H. EDENS, Respondent, v. Sam M. LATTO et al., Appellants.

Page 489

90 S.E.2d 489

228 S.C. 412

ROYAL CROWN BOTTLING COMPANY, Inc., of Anderson, S. C., et

al., Appellants, v. William E. CHANDLER et al., Respondents.

NEHI-ROYAL CROWN BOTTLING COMPANY, Inc., of Spartanburg, S.

C., et al., Appellants, v. William E. CHANDLER, Jr., et al., Respondents.

T. S. HARTNESS and Sara J. Hartness, Partners, doing

business as Pepsi-Cola 7-Up Bottling Company, Appellants, v. William E. CHANDLER, Jr., et al., Respondents.

O. W. HARTNESS and George Hartness, doing business as 7-Up

Bottling Company of West Columbia, S. C., Appellants, v. William E. CHANDLER, Jr., et al., Respondents.

HARTNESS BOTTLING WORKS, Appellant, v. William E. CHANDLER, Jr., et al., Respondents.

Henry H. EDENS, Respondent, v. Sam M. LATTO et al., Appellants.

No. 17086.

Supreme Court of South Carolina.

Nov. 15, 1955.

Price & Poag, Leatherwood, Walker, Todd & Mann, Greenville, for appellants.

E. P. Riley, Greenville, Henry Hammer, Columbia, for respondents.

STUKES, Justice.

The first five of the above stated actions were instituted in Greenville County and the last stated in Richland. They were consolidated by consent and tried in Greenville County. The decision of them was reversed upon appeal to this court. 226 S.C. 94, 83 S.E.2d 745. The bottler-plaintiffs are residents of various counties and the respondent Edens was at the time of the commencement of the actions, and is, a resident of the City of Columbia, Richland County. The venue of the five actions against him and others in Greenville was maintained by reason of the residence there of co-defendant Chandler.

Reference to the above cited decision of the former appeal shows that it was adjudicated that Chandler has no claim against the bottlers and he is no longer interested except, quoting, 'as he may participate in the fee which may be recovered by Edens, who is the principal appellant; and this action is not concerned with the division.' The mandate of the decision was that the judgment then under appeal was reversed and the case remanded to the trial court for the fixing of a reasonable fee which will be awarded to Mr. Edens, and for an accounting as recommended by the special referee.

Upon remand the present respondent, Edens, moved for a hearing in the Court of Common Pleas for Greenville County, but, upon showing by the present appellants, the resident judge disqualified himself. Thereafter Mr. Edens moved for change of venue to Richland County, his residence at the time of the commencement of the actions and now, upon that ground and that he is the 'only real defendant.' The motion was heard and granted by another Circuit Judge who was presiding over the Greenville Court of Common Pleas. This appeal is from his order which simply refused to set a date for the hearing of the cases and transferred them to the Court of Common Pleas for Richland County.

The argument of appellants is that the respondent was estopped from making the motion to transfer the cases to Richland County and that it follows, they assert, that the Circuit Judge abused his discretion in granting the motion and ordering the transfer. Therefore the appeal will be considered and decided on the premise, which is appellants', that the granting or refusal of the motion was within the discretion of the court. Compare on this feature, Shelton v. Southern Kraft Corporation, 195 S.C. 81, 10 S.E.2d 341, 129 A.L.R. 1280. They also argue against the propriety of the former decision of this court, which is illtimed, to say the least. They did not petition for rehearing, which was their right, if timely exercised, perforce the provisions of Rule 17 of the court. That decision is the law of this case.

Soon after the institution of the actions against him and Chandler (and the latter's partner-brother) in Greenville County the present respondent on January 15, 1953, moved for change of venue to Richland County on the ground of his residence there, the convenience of witnesses, and the alleged promotion of the ends of justice. When that motion came on to be heard the court suggested, and all parties consented that the Greenville actions and the Richland action be consolidated and referred to a special referee of another county, rather than to the master for Greenville County, which was done. That was, of course, before it was adjudicated that Chandler was not a real defendant. That motion and respondent's motion for hearing before the resident judge immediately after remand of the cases are claimed by appellants to constitute waiver by respondent of right to later move for transfer of the cases to Richland County. We do not think so. The motion which resulted in the order now under review was made after the Greenville defendants were effectively eliminated from the cases and respondent had become, in reality, the sole defendant. The situation was thus entirely changed from that which existed when respondent...