Opinion
16710
February 3, 1953.
Mr. George W. Freeman, Jr., of Bennettsville, for Appellant, cites: As to court of common pleas for Chesterfield County being without authority to order a change of venue. 72 S.C. 572, 52 S.E. 646; 195 S.C. 81, 10 S.E.2d 341. As to discretion being abused by Trial Judge where a counter change of venue was ordered: 217 S.C. 16, 59 S.E.2d 344; 158 S.C. 496, 155 S.E. 828.
Messrs. Knight Bell, of Chesterfield, for Respondent, cite: As to power being in Trial Judge to order a counter change of venue: 133 S.C. 112, 129 S.E. 210; 160 S.C. 63, 158 S.E. 134; 161 S.C. 213, 159 S.E. 557; 113 S.C. 112, 101 S.E. 640. As to jurisdictional question being waived: 182 S.C. 331, 189 S.E. 641; 170 S.C. 304, 170 S.E. 449. As to discretion of Trial Judge not being abused in ordering a counter change of venue, where convenience of witnesses and ends of justice were thereby promoted: 206 S.C. 261, 33 S.E.2d 629; 190 S.C. 66, 1 S.E.2d 920. As to Prima facie showing being that convenience of witnesses and ends of justice would be promoted: 217 S.C. 16, 59 S.E.2d 344; 38 S.C. 399, 17 S.E. 141; 221 S.C. 334, 70 S.E.2d 346; 190 S.C. 66, 1 S.E.2d 920; 206 S.C. 261, 33 S.E.2d 629.
Mr. George W. Freeman, Jr., of Bennettsville, for Appellant, in Reply.
The order of Judge Moss requested to be reported follows:
This action originated in Chesterfield County on Summons and Complaint, which was duly served on the defendant and is for damages to person and property arising out of a collision between the automobiles of plaintiff and defendant, the plaintiff alleging negligence and wilfulness on the part of the defendant. The collision occurred in the Town of Cheraw, Chesterfield County, South Carolina, on September 28th, 1945.
The defendant in due time moved for a change of venue from Chesterfield County to Marlboro County on the grounds that the defendant, Mrs. Ida W. Sims, is a citizen and resident of Marlboro County, and that the defendant automobile is situate in Marlboro County. The plaintiff did not contest this motion but immediately served notice of motion to have the cause removed back to Chesterfield County upon the ground that the convenience of witnesses and the ends of justice will be promoted by having the trial in Chesterfield County. Section 426 of the 1942 Code.
This matter came before me at the November term of Court for Chesterfield County, at Chesterfield, South Carolina, upon motion of the plaintiff. By agreement of counsel for both plaintiff and defendant, I marked the matter heard and agreed to decide the motion on written argument. It appears that the defendant is a citizen and resident of Marlboro County, and is therefore entitled to have the action brought in Marlboro County, and it is therefore ordered that the venue be changed from Chesterfield to Marlboro County.
Turning now to plaintiff's motion for a change of venue from Marlboro County to Chesterfield County, upon the ground that the convenience of witnesses and the ends of justice would be promoted by the change, which is the real issue before me.
It is true that the defendant has a right to be sued in Marlboro County, but that right is subject to the right of plaintiff to have the place of trial changed to another county, if both the convenience of the witnesses and the ends of justice will be promoted thereby. Reynolds v. Atlantic Coast Line Railway Co., 217 S.C. 16, 59 S.E.2d 344; McCarty v. Bolick, 216 S.C. 396, 58 S.E.2d 338.
In support of his motion plaintiff has submitted affidavits of three witnesses, and the affidavits show that two of the witnesses are residents of Chesterfield County, and live northwest of the Town of Chesterfield, that the other witness is a resident of the Town of Lancaster, S.C.; that it would be more convenient for all three witnesses to attend Court in Chesterfield, S.C. than in Bennettsville, S.C. Plaintiff also submitted affidavit of J. Arthur Knight, counsel for Plaintiff; witnesses, including the doctor who treated Mr. Stanton, reside in or west of the Town of Chesterfield; that the accident occurred in Chesterfield County, and that a view of the scene of the accident by the jury would promote the ends of justice.
Since the affidavits submitted by plaintiff show that all of plaintiff's witnesses reside in Chesterfield County, except one who resides in Lancaster County, and that all witnesses reside in or west of the Town of Chesterfield County, South Carolina, it would certainly serve the convenience of the witnesses to change the venue to Chesterfield County, and it would tend to promote the ends of justice by having a jury of Chesterfield County to pass upon the credibility of these witnesses. Reynolds v. Atlantic Coast Line Railway Co., supra; Utsey v. Charleston, S. N.R. Co., 38 S.C. 399, 17 S.E. 141.
The defendant did not submit any affidavits disputing the contents of plaintiff's affidavits, and there is nothing in the record to overcome the strong prima facie showing made by the plaintiff that both the convenience of the witnesses and the ends of Justice will be promoted by the change, and;
It is therefore ordered that the place of trial of this case be changed from Marlboro County to Chesterfield County.
February 3, 1953.
The order of Honorable Joseph R. Moss has been carefully considered in the light of the record and the exceptions, and we find no error.
Let the order be reported as the judgment of this Court.