39 S.E. 364 | S.C. | 1901
July 24, 1901. The opinion of the Court was delivered by *256 This action was begun on the 6th day of December, 1898, in the Court of Common Pleas for Charleston County, in said State, for the recovery by the plaintiff from the defendant of $15,250 because, as alleged, the plaintiff had been injured while a passenger on the line of defendant's railroad company from the Isle of Palms to the city of Charleston, by the negligence of the said defendant. The defendant denied the injuries of the plaintiff, but alleged if she was injured, the same was the result of the contributory negligence of the defendant. The cause was twice tried — once before his Honor, Judge Gage, and a jury, on December 9th and 11th, inclusive, in the year 1899, and once before his Honor, Judge Buchanan, and a jury, on the 5th and 6th of December, 1900. In each instance there was a mistrial because of the failure of the jury to agree. After due notice, a motion was made by the plaintiff for a change of venue before his Honor, Judge Buchanan. The plaintiff submitted her own affidavit in support of her motion, while the defendant exhibited affidavits from the two juries, alleging that they had endeavored to give the parties a fair trial by reaching a verdict, but could not do so by reason of the difference of opinion amongst the jurors as to the weight of the testimony. The Reporter will insert a copy of these affidavits in his report of this appeal. The Circuit Judge, after argument, ordered the cause changed for trial to Orangeburg County, S.C. which is a county in the same judicial district with Charleston County, viz: the first circuit.
From this order the defendant has appealed on three grounds, as follows:
"First. Because his Honor erred in changing the place of trial herein, as the motion therefor was unsupported by any affidavit stating any facts tending to show that a fair and impartial trial could not be had in the county of Charleston.
"Second. Because his Honor should have held that the affidavits in support of said motion failed to state any facts *257 whatever, but on the contrary set forth merely a belief and speculation of plaintiff.
"Third. Because on the record herein, and affidavits submitted in support of said motion, his Honor erred in granting a change of venue herein."
In disposing of this appeal, we will state: The VI. art., sec. 2, of the Constitution of 1895, requires the General Assembly of this State "to pass laws for the change of venue in all cases, civil and criminal, over which the Circuit Courts have original jurisdiction, upon a proper showing, supported by affidavit, that a fair and impartial trial cannot be had in the county where such action or prosecution was commenced." And on the 12 day of February, 1896, the General Assembly passed an act whose title is "An act to provide for a change of venue in civil and criminal cases in the Circuit and magistrate's courts," 22 Stat. at Large, pp. 12 and 13. The first section of this act relates to the change of venue by the Circuit Courts, and sets out the provisions of sec. 2, of art. VI., of Constitution, and prescribes ten days notice of such application before the hearing is had "in regular term by some party interested." This is the law under which the present application for a change of venue was made. This action is on the law side of the Court of Common Pleas. The Supreme Court of this State, in hearing appeals, is confined to questions of law in cases on the law side of the Court. The Circuit Judge has decided that a proper showing has been made by the affidavits submitted for a change of venue. The three grounds of appeal here presented only ask a reversal of such decision on issues of fact. If we could interfere, however, we will venture to say that upon the facts we would not do so. There was no abuse of his discretion by the Circuit Judge.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. *258
