Willoughby v. Northeastern R. Co.

• Decision Date: 23 March 1896
• Citation: 24 S.E. 308,46 S.C. 317
• Parties: WILLOUGHBY et al. v. NORTHEASTERN R. CO.
• Court: South Carolina Supreme Court

24 S.E. 308

46 S.C. 317

WILLOUGHBY et al. v. NORTHEASTERN R. CO.

Supreme Court of South Carolina

March 23, 1896

Appeal from common pleas circuit court of Williamsburg county; D. A Townsend, Judge.

Action by Ella F. Willoughby and another against the Northeastern Railroad Company. From a judgment granting a change of venue defendant appeals. Affirmed.

Thos M. Gilland and Theo. G. Barker, for appellant.

Ira B Jones, for respondents.

POPE J.

This action was commenced in the court of common pleas for Williamsburg county, in this state, on the 23d day of July, 1889, by the service of the summons and complaint on the defendant, whose answer was served on plaintiffs on the 8th day of August, 1889. The case was docketed for trial on the 13th August, 1889. It came on for trial at the February term of the court, in the year 1892, and resulted in a mistrial; the jury having failed to agree. It next came on for trial on November 4, 1893, when a mistrial was ordered; the jury, a second time, having failed to agree on a verdict. On the 20th day of October, 1894, the following notice was served by plaintiffs on defendant: "Notice of motion to change venue: To Thomas M. Gilland and Theo. G. Barker, Attorneys for Defendant: You will please take notice that the plaintiffs will move the Honorable D. A. Townsend, presiding judge at Kingstree, in the county aforesaid, on Wednesday, the 24th day of October, inst., at 10 o'clock a. m., or as soon thereafter as counsel can be heard, for an order to change the place of trial of the above-stated case from the court of common pleas for the county of Williamsburg to the court of common pleas for the county of Florence, or to such other county as his honor may, in his discretion, designate. Said motion will be made upon the pleadings and record in this case, and upon affidavits of which copies are herewith served upon you, and upon such other affidavits of the like tenure as may hereafter be served upon you. This motion is made pursuant to section 147 of the Code of Civil Procedure, and upon the following grounds: (1) Because there is reason to believe that an impartial trial cannot be had in this case in the county of Williamsburg; (2) because the convenience of witnesses and the ends of justice would be promoted by the change. R. Dozier & Ira B. Jones, Plaintiffs' Attorneys." On the 26th day of October, Judge Townsend, as presiding judge, while holding the term of the court of common pleas for Williamsburg county which began on the 24th day of October, 1894, heard this motion. Defendant's attorneys first moved to strike out the first ground for the change of place of trial on account of plaintiffs' belief that they could not obtain a fair and impartial trial of their action in Williamsburg county, giving as the reason therefor that 20 days' notice had not been given to the defendant. The circuit judge declined to sustain this motion of defendant, alleging that section 147 of the Code embraced this as one of the grounds for a change of trial, and that section 403 of the Code fixed 4 days as the time which must be observed in such notices. To this ruling of the circuit judge the defendant excepted, and renews such exception here. We will now consider this exception.

The powers of the constitution ratified in April, 1868, in section 2 of article 5, directed that "the general assembly should pass the necessary laws for the change of venue in all cases, civil and criminal, over which the circuit court have original jurisdiction, upon a proper showing, supported by affidavit, that a fair and impartial trial cannot be had in the county where such trial or prosecution was commenced." Accordingly, in September, 1868, the general assembly enacted a law embodying the requirements of the constitution as found in section 2, art. 5 (see 14 St. at Large, 84), and the terms of this act in its entirety, and incorporated in our Civil Statute Laws, at section 2246. Under these acts, notice of such motion must be made during term time, and upon 20 days' notice of such application to the adverse party. But subdivision 2 of section 147 of our Code of Civil Procedure provides that the court may change the place of trial "when there is reason to believe that an impartial trial cannot be had therein." It is curious, but true, that in title 4 of the Code of Civil Procedure, beginning with section 144, and ending with section 147, there occurs no provision that the change of place of trial shall be upon affidavit, as required by the constitution. Such being the case, subdivision 2 of section 147 of the Code of Civil Procedure cannot be said to fill the requirement of the constitution, which was mandatory, that the same shall be made on affidavit, and that the general assembly shall so provide. Under this view of this phase of the appeal, it seems that the circuit judge was in error, and should have granted the motion of defendant to exclude from plaintiffs' motion the right to a change of venue because a fair and impartial trial cannot be had in Williamsburg county; and, of course, the original act of 1868, with all its incidents, still controls. We will now dispose of the other exceptions in their order.

Both sides to the contention then submitted affidavits, relating to the convenience of witnesses and ends of justice being promoted by the change of place of trial. Subdivision 3 of section 147 of our Code of Civil Procedure allows a circuit judge to change the place of trial "when the convenience of witnesses and the ends of parties will be promoted by the change." And the circuit judge sustained the change applied for on this ground also. Was it error so to hold? The appellant here contends that it was, on the following grounds: First. The notice of plaintiffs should have been for 20 days, and not 4 days, for the proposed motion. We cannot so hold as to the first and third subdivisions of section 147 of the Code of Civil Procedure, for section 403 of such...