9165 | S.C. | Aug 19, 1915
August 19, 1915. The opinion of the Court was delivered by This is an action on a note signed by the defendant, W.T. Gregory, to N.J. Laney in the sum of $3,750, due on September 1, 1914. N.J. Laney endorsed the note, and it came into the possession of plaintiff, and not being paid when due action was brought on the same against W.T. Gregory and N.J. Laney. N.J. Laney is a brother of the plaintiff and is a resident of Lee county. W.T. Gregory is a resident of Lancaster county. Before answering, Gregory made a motion upon affidavits for a change of venue to Lancaster county before the Judge presiding in Third Circuit at chambers, Honorable H.F. Rice. This motion was refused, and defendant, Gregory, was allowed ten days to answer after notice of order refusing the motion for change of venue. Defendant, Gregory, appeals from order refusing motion to change the venue. *149
The exceptions, six in number, complain of error on the part of the presiding Judge, but need not be considered separately. It appears from the complaint that the defendant, Gregory, executed and delivered to N.J. Laney a negotiable note due and payable on September 1, 1914, at Darlington, S.C. for $3,750; that the note was executed on July 8, 1914, and before maturity the defendant, N.J. Laney, endorsed and delivered the note to the plaintiff for value, and at its maturity it was presented for payment, and not being paid was protested for nonpayment, and that no part has been paid.
Gregory, in the affidavits submitted in the motion made for change of venue, seeks to establish that the transfer was pretensive, and that the plaintiff has no interest in the note, and that N.J. Laney is the real owner, and that it is a sham suit; that the plaintiff and N.J. Laney are in collusion, and the suit is brought in Lee county and N.J. Laney joined as a party defendant for the purpose of depriving the defendant, Gregory, of his right to trial in Lancaster county, where he resides, and prevent him of his right to set up a valid and meritorious defense that he has to the note sued on.
This Court has held that possession of a note is primafacie evidence of ownership, and that the burden is on the maker of the note to overcome this presumption where it is denied, and this Court has held that it is unsatisfactory to determine any substantial and issuable facts involving the merits of the case upon affidavits. If Judge Rice had granted the motion of defendant, Gregory, on affidavits submitted pro and con, he would necessarily have had to decide substantial and material issues in the case. The question of ownership of the note sued on, whether or not there was collusion between the plaintiff and N.J. Laney, and whether or not the suit was pretensive and sham. None of these question could he have decided at chambers on a motion based on affidavits. As to the right to bring *150
the suit in Lee county this question is conclusively determined against the appellants in Barfield v. Coker,