46 S.C. 317 | S.C. | 1896
Lead Opinion
The opinion of the court was delivered by
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
“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 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 twenty days’ notice had not been given to the defendant. The Circuit Judge declined to sustain this
It follows, therefore, that we must affirm the order appealed from, except that we overrule one ground upon which it was based, the right to change the place of trial, because a fair and impartial trial cannot be had in Williamsburg County without the twenty days notice of such motion having been given by plaintiffs to the adverse party.
It is the judgment of this court, that the order appealed from be affirmed.
Concurrence Opinion
concurring. The main question raised by the appellant is that of jurisdiction. Whatever right the appellant may have had to object to the jurisdiction of the court to entertain the motion was waived when it introduced affidavits in its behalf and contested the motion on its merits. Smith v. Walke, 43 S. C., 381; Oliver v. Fowler, 22 S. C., 540. The other questions involved are those of fact, which in cases such as this are not ordinarily the subject’of review by this court. I, thererore, concur in the opinion of Mr. Justice Pope.