Sample v. Bedenbaugh

• Decision Date: 06 November 1930
• Docket Number: 13019.
• Parties: SAMPLE v. BEDENBAUGH et al. LANGFORD v. SAME. MITCHELL v. SAME.
• Court: South Carolina Supreme Court

155 S.E. 828

158 S.C. 496

SAMPLE v. BEDENBAUGH et al.

LANGFORD v. SAME.

MITCHELL v. SAME.

No. 13019.

Supreme Court of South Carolina

November 6, 1930

Appeal from Common Pleas Circuit Court of Saluda County; John S Wilson, Judge.

Action by B. F. Sample, by L. H. Langford, and by T. B. Mitchell against C. B. Bedenbaugh and others. From an order denying a motion to change the place of trial, defendants appeal.

Affirmed.

George B. Cromer, J. B. Hunter, and B. V. Chapman, all of Newberry for appellants.

Timmerman & Graham, of Lexington, and Jeff D. Griffith, Joe G Griffith, and B. W. Crouch, all of Saluda, for respondent.

SMITH A. A. J.

These three actions, identical except as to the name of the plaintiff, were commenced in the county of Saluda, on January 20, 1930, for damages for the utterance and publication in The Herald and News, a newspaper published in the county of Newberry and having a general and wide circulation in the county of Newberry and adjacent counties, of an alleged libelous communication.

The three cases were heard together in the circuit court and in this court under a common transcript of record.

The case first stated will be considered; what shall be said in reference to it and the judgment ordered shall apply equally to the other two cases.

All of the defendants, thirty-six in number, except the defendant Ira B. Armfield, who is a member of a partnership that publishes the said newspaper, are admittedly citizens of the county of Newberry. It also appears that these plaintiffs have actions growing out of the same transaction now pending in the county of Newberry against the same defendants, except that J. W. Ehrhardet, publisher of the Newberry Observer, another newspaper published in the town of Newberry, is a defendant in place of the defendant Armfield.

On the 3d day of March, 1930, the defendants submitted a motion to Hon. John S. Wilson, at his chambers, at Edgefield, to change the place of the trial to Newberry county upon the grounds: (1) That the action was not brought in the proper county, and (2) that the convenience of witnesses and the ends of justice would be promoted by the change. The motion was denied, and this appeal is from that order.

Under the provisions of section 382 of the Code of Civil Procedure 1922, the circuit judge is authorized to change the place of trial in a civil action upon due application therefor (1) when the action is not brought in the proper county, (2) where there is reason to believe that an impartial trial cannot be had in the designated county, and (3) when the convenience of witnesses and the ends of justice would be promoted by the change.

Section 378 of the Code of Civil Procedure 1922 also provides, in part, that in all cases not specifically provided for in the two preceding sections (376 and 377), and in certain subsequent sections relating to suits by and against insurance companies, other actions "shall be tried in the county in which the defendant resides at the time of the commencement of the action; and if there be more than one defendant, then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of the action."

It has been well settled in this state, as elsewhere, that place of residence is a question of fact and depends upon the intention of the party as evidenced by his acts and declarations (Barfield v. Coker, 73 S.C. 181, 53 S.E. 170; Laney v. Gregory, 101 S.C. 144, 86 S.E. 3), and the finding of the circuit judge is conclusive thereon unless there is a total failure of testimony to support it (Barfield v. Coker, supra; LeHardy v. Dibble, 80 S.C. 482, 61 S.E. 950).

There was testimony offered at the hearing of the motion to show that about three days before the institution of these actions the defendant Armfield, in response to an inquiry by Messrs B. W. Crouch and Jeff D. Griffith, attorneys for the plaintiff, stated to them "that he had never removed his citizenship or residence from Saluda county and that he was a citizen of said Saluda county, and while he spent a large portion of his time away from Saluda he still considered himself a citizen of Saluda county." This...