96 S.E. 519 | S.C. | 1918
July 24, 1918. The opinion of the Court was delivered by This action is for damages for cutting off plaintiff's supply of water. The venue was laid in Berkeley county, which is in the First Judicial Circuit. Defendant moved to change it to Charleston county, which is in the Ninth Judicial Circuit, under subdivisions 1 and 3 of section 176 of the Code of Civil Procedure. Plaintiff is a resident of the city of Charleston. Defendant is a public service corporation, having the exclusive franchise of supplying light and water to the residents of the city. The water supply is brought from the adjoining county of Berkeley, where defendant has its reservoir, filtering plant, and pumping station, but its principal place of business is in the city of Charleston. Section 176 of the Code of Civil Procedure gives the Court power to change the place of trial: (1) Where the county designated in the complaint is not the proper county; (2) where there is reason to believe that an impartial trial cannot be had therein; and (3) when the convenience of witnesses and the ends of justice will be promoted by the change. The Court refused the motion under the first, but granted it under the third, subdivision. Plaintiff appealed, assigning error: (1) In granting the motion at all; and (2) in removing the cause to a different Circuit, when, if removed at all, it should have been to another county in the same Circuit. Defendant gave notice that it would ask that the order be sustained on the additional ground that it should have been granted under the first subdivision.
Being satisfied that the venue was properly changed under the third subdivision, we express no opinion as to defendant's right to a removal under the first.
Plaintiff relies upon section 3832, vol. I, Civil Code, which gives the Circuit Court power to change the venue in all cases, civil and criminal, pending therein, on motion, supported by affidavit that a fair and impartial trial cannot be had in the county where such action or prosecution was commenced, and provides that in such cases the venue must be changed to another county in the *343 same Judicial Circuit. Examination of that section shows that it relates only to a change of venue on the ground that a fair and impartial trial cannot be had in the county in which the action or proceeding was commenced. Therefore, it does not affect, nor was it intended to affect, the power of the Court to remove causes for the reasons stated in subdivisions 1 and 3 of section 176 of the Code of Civil Procedure.
If the venue is laid in the wrong county, on motion of a party interested, it must be changed to the proper county, without regard to whether that county be in the same or a different Circuit; and so, also, under the provision of the third subdivision, if the place of trial should be changed on account of the convenience of witnesses and promote the ends of justice, it may be necessary to remove the cause to another Circuit, or defeat the very purpose intended to be accomplished.
Order affirmed.