State v. Gibbes

• Decision Date: 06 March 1918
• Docket Number: 9914.
• Citation: 95 S.E. 346,109 S.C. 135
• Parties: STATE, BY PEEPLES, ATTY. GEN., v. GIBBES.
• Court: South Carolina Supreme Court

95 S.E. 346

109 S.C. 135

STATE, BY PEEPLES, ATTY. GEN., v. GIBBES.

No. 9914.

Supreme Court of South Carolina

March 6, 1918

Appeal from Common Pleas Circuit Court of Richland County; Geo. E Prince, Judge.

Action in the nature of quo warranto by the State, by Thomas H Peeples, Attorney General, against Wade Hampton Gibbes. From an order of reference, plaintiff appeals. Affirmed.

Thomas H. Peeples, Atty. Gen., for appellant.

Weston & Aycock and R. Beverly Herbert, all of Columbia, for respondent.

HYDRICK J.

This is an action in the nature of quo warranto to try the title of the defendant to the office of Chief Game Warden of the state. It was brought in the original jurisdiction of the Supreme Court, in pursuance of leave granted by the Chief Justice, by an order dated August 11, 1917. It is alleged in the complaint, as a reason for asking leave to bring the action in the original jurisdiction of this court that the issue is of state-wide importance, and therefore a speedy determination of it is desired. In his answer defendant also asked for a speedy hearing and decision.

After defendant had served his answer, the attorneys for both parties joined in a letter to the Chief Justice, dated September 17, 1917, in which they stated that they had agreed to an order of reference to take and report the testimony, and named 10 members of the bar, any one of whom would be acceptable to them as a referee. Thereupon, on September 28th, the majority of this court (the Chief Justice dissenting) handed down the following order:

"It appearing that issues of fact as well as of law are to be determined in this case, and that the parties have had ample time to have had such issues regularly heard and decided in the circuit court; and it further appearing that there is still ample time for them to have such issues there decided, and, if the decision of this court thereon be desired, to bring the case here regularly on appeal, and have it heard as early as it could be heard in the original jurisdiction: It is ordered that this court decline original jurisdiction of the case under rule 25 (90 S.E. xi), and that it be remanded to the circuit court for hearing and decision. As the issue involved is one of public importance, the circuit court will give the case precedence in hearing and decision, so that, if appeal be taken to this court, the same may be disposed of with all convenient speed at the approaching term."

On October 1st plaintiff filed the summons and complaint in the court of common pleas for Lexington county, and had the case docketed there for trial. On October 6th, upon due notice, defendant moved the court of common pleas for Richland county to docket the case in that court, and refer it to a referee to take and report the testimony. Plaintiff appeared and objected to the jurisdiction of the court to pass the order on three grounds: (1) Because the action was not commenced in the Richland court, and the record had already been filed in the Lexington Court, and the Richland court had no jurisdiction to order the case transferred from Lexington to Richland county for trial; (2) because the summons and complaint had not been filed in the Richland court and the case docketed there 14 days before the convening thereof by plaintiff, nor 7 days before the convening thereof by defendant, and therefore the court had no jurisdiction to order the cause docketed for trial; and (3) that the court was without jurisdiction to grant an order of reference, because the action was one in which plaintiff had the right of trial by jury.

The court overruled these objections, and passed the order prayed for, naming therein, as referee, one of the gentlemen mentioned in the letter to the Chief Justice as acceptable to both parties. From that order the plaintiff appealed.

The first question to be determined is the proper venue. Clearly that is Richland county, because the action involves the title to a state office, which is kept at the seat of the state government, which is in Richland county, and the cause of action arose in that county. We do not agree with appellant that the case falls under subdivision 2 of section 173 of the Code of Civil Procedure, which provides that "actions * * * against a public officer, * * * for an act done by him in virtue of his office," etc., shall be tried in the county in which the cause of action or some part thereof arose. This is not such an action, but, as stated, it is an action to try the title to a state office, and therefore the proper place of trial is at the seat of the state government, where the office is kept, and where the cause of action (alleged unlawful intrusion into the office and usurpation of its powers and duties) arose.

In reaching this conclusion no importance is attached to the fact that, in the original summons and complaint filed in this court, the venue is laid in Richland county. That might have been done merely because this court sits only in Richland county. As the jurisdiction of this court extends all over the state, it would not be improper, in an action or proceeding in the original jurisdiction, to lay the venue as of the county in which the cause of action arose, or would be triable, if it had been brought in the circuit court. But when this court sends a case to the circuit court for any purpose, it is necessarily implied that it is sent to the county of the proper venue.

The provision of section 314 of the Code of Civil Procedure as to...