Castles v. Lancaster County

55 S.E. 115 | S.C. | 1906

July 13, 1906. The opinion of the Court was delivered by The plaintiff, as administrator, brought this action against Lancaster County to recover damages for the alleged lynching of John T. Morrison by a mob within the limits of the county. A motion was made by plaintiff before Judge Gage at his chambers, Chester, S.C., upon notice and affidavits, for an order to change the place of trial. 1. Because the convenience of witnesses and the ends of justice would be promoted by the change. 2. Because there is reason to believe that an impartial trial can not be had in Lancaster County.

Judge Gage held that he had no jurisdiction to hear the motion on the second ground, and as to the first ground found as matter of fact that the convenience of witnesses would not be promoted by the change, but, nevertheless, held that the ends of justice would be promoted by the change, and accordingly ordered a change of venue to York County.

The question now presented by the exceptions of defendant-appellant is whether Judge Gage had power at chambers to grant change of venue solely on the ground that the ends of justice would be promoted. The order of Judge Gage and the exceptions thereto are officially reported herewith. We think Judge Gage exceeded his power. Section 147 of the Code of Civil Procedure states three cases in which the place of trial may be changed:

"1. When the county designated for that purpose in the complaint is not the proper county.

"2. When there is reason to believe that an impartial trial cannot be had therein.

"3. When the convenience of witnesses and the ends of justice would be promoted by the change."

A motion for change of venue may be tried at chambers on the first and third grounds above. Utsey v. RailroadCo., 38 S.C. 399, 17 S.E., 141; Fishburne v. Minott, 72 S.C. 574; but, as Judge Gage correctly held, a Judge at chambers has no jurisdiction to remove a case on the second ground. Willoughby v. Railroad, 46 S.C. 320,24 S.E., 308. The effect of the order of Judge Gage is to construe the third ground mentioned in the statute as really constituting two separate and distinct grounds, as if the statute had read, "when the convenience of witnesses or the ends of justice would be promoted." But when the Court in the Utsey case held that a motion on the third ground could be entertained at chambers, it did not so construe the statute; on the contrary, the language of the Court is as follows: "We agree with the appellant that the Circuit Judge in granting the order here in question should be controlled in his judicial discretion by the words of the statute, that `the convenience of witnesses and the ends of justice would be promoted by the change.' But we are not able to see that the Circuit Judge has not observed both requirements here. Indeed, if we may be pardoned the observation, it seems to us that the ends of justice are subserved when the testimony of nine witnesses, all living in Sumter County, is, by this very order, submitted to a jury of Sumter County. The very object of our jury system, in requiring jurors from the vicinage to pass upon the credibility of witnesses, is the promotion of the ends of justice." Undoubtedly the meaning of the statute, in coupling "the convenience of witnesses" and "the ends of justice" together as a single ground for change of venue, was to authorize a change on this ground only when both the convenience of witnesses and the ends of justice would be promoted, or to prevent a change merely for the convenience of witnesses and without regard to the ends of justice. If we should give to the words "ends of justice" a meaning which embraces matters covered by the words "impartial trial" or "fair and impartial trial," and hold that a Judge at chambers has power to change venue to promote "the ends of justice" solely, but has no power at chambers to make such change to promote an "impartial trial," we would contradict ourselves and allow a Judge at chambers to do indirectly what he has no power to do directly. The Circuit Judge does not indicate in what way the ends of justice would be promoted by a change of venue, since he finds that the convenience of witnesses would not be promoted, and properly declines to consider whether a fair and impartial trial may not be had in Lancaster County, unless it be contained in the suggestion of the liability of the county to pay in the event of recovery. But this suggestion necessarily involves a consideration whether a fair and impartial trial may be had in a county which is sued, and in any event is not a matter for the determination of a Judge at chambers.

The order of Judge Gage changing the place of trial from Lancaster County to York County, being in excess of his power at chambers, is reversed and set aside.

MR. JUSTICE GARY dissents.