Gilliken v. Norcom, 193 N.C. 352 (1927)

March 16, 1927 · Supreme Court of North Carolina

193 N.C. 352

MATTIE J. GILLIKEN, Executrix, et al. v. GEORGE D. NORCOM et al.

(Filed 16 March, 1927.)

Removal of Causes — Transfer of Causes — Rocal Prejudice — Courts—Discretion — Appeal and Error.

Where a party moves for the removal of a cause to another county than the one in which it had been brought, upon the grounds that he cannot obtain á fair and impartial trial therein, C. S., 471, 472, and upon affidavits filed therein that the case had been generally discussed and that the movant could not proceed therein and obtain an impartial trial, upon which the judge so finds the facts, the order removing the case according to the requirements of the statute is within his sound discretion, and not reviewable on appeal, though he further states in his order that his findings were based on his personal observation.

Civil action, before Stack, J., at December Term, 1926, of Carteret.

This was a civil action instituted for the purpose of setting aside a deed made to the defendant by the testatrix of the plaintiff. In apt time a motion for removal was made by the plaintiff upon the ground that “a fair and impartial trial of the action cannot be had in Carteret County.” Affidavits were filed by both parties to the controversy, and at the hearing upon the motion tbe following judgment was rendered, removing tbe ease to Craven County:

“Tbis cause, by consent of tbe parties, coming on to be beard in Greene County, and being beard upon tbe plaintiffs’ and defendants’ affidavits to remove tbe case to another county, tbe court finds tbat there are probable grounds to believe tbat a fair and impartial trial of tbe action cannot be bad in Carteret County, and tbe court came to tbis conclusion upon personal observation during bis term of court there and while trying two causes between these parties, to wit, Gilliken, Norcom et al., concerning personal property and Gilliken and Norcom, etc., concerning real estate; and it is found as a fact tbat tbe surrounding circumstances are such and tbe court is of tbe opinion tbat a fair and impartial trial cannot be bad in Carteret County:

It is further found as a fact tbat tbe case has been discussed to such an extent tbat it would be difficult to find a sufficient number of jurors who have not formed an opinion in tbe cause, and in order tbat tbe ends of justice would be promoted by tbe change, it is, therefore, ordered, considered and adjudged tbat tbe cause be removed to Craven County for trial, State of North Carolina, and tbat tbe clerk of tbe court of Carteret County send tbe original papers and a certified copy of tbis order to Craven County, and tbat further proceedings be bad according to law.”

Abernethy <& Abernethy, M. Leslie Davis and Ward & Ward for plaintiff.

O. R. Wheatley and J. F. Duncan for defendant.

Brogden, J.

Is an order of removal upon tbe ground tbat a party cannot secure a fair and impartial trial reviewable in tbe Supreme Court ?

Tbe plaintiff asked for removal of tbe cause under C. S., 471 and 472. Affidavits were filed in behalf of plaintiff, reciting in substance tbat tbe case bad been discussed generally in Carteret County to such an extent tbat “tbe whole population have formed or expressed an opinion one way or tbe other.” A large number of affidavits were filed in behalf of defendants, contradicting and controverting tbe affidavits filed by tbe plaintiff and asserting tbat a fair trial of tbe cause could be bad in tbe county in which tbe action was instituted. Tbe order of removal recites: “Tbe court finds tbat there are probable grounds to believe tbat a fair and impartial trial of tbe action cannot be bad in Carteret County, and tbe court came to tbis conclusion upon pérsonal observation during bis term of court there while trying two cases between these' parties.” Tbe statutes upon which tbe motion is based contemplates tbat affidavits for removal must “set forth particularly in detail tbe ground of the application.” The rule of law governing motions for removal for the causes specified, is thus declared in Phillips v. Lentz, 83 N. C., 240: “The distinction seems to he where there are” no facts stated in the affidavit as grounds for the removal, the ruling of the court below may be reviewed; but where there are facts set forth, their sufficiency rests in the discretion of the judge and his decision upon them is final.” S. v. Smarr, 121 N. C., 672; S. v. Turner, 143 N. C., 641; Garrett v. Bear, 144 N. C., 23; Oettinger v. Live Stock Co., 170 N. C., 152; Byrd v. Spruce Co., 170 N. C., 429.

In Oettinger v. Live Stock Co., supra, the rule was declared to be: “The Supreme Court will not review the denial of the Superior Court judge of a motion to remove for the convenience of witnesses or for that the ends of justice will be promoted.” To the same effect is the rule declared in Byrd v. Spruce Co., supra, Justice Allen observing: “The motion to remove the action for trial to another county in the interest of justice was addressed to the discretion of the court and is not reviewable.”

Applying these rules of law, it appears from the record that, while the judge stated in the order of removal, “the court came to this conclusion upon personal observation,” etc., yet the order of removal further recites “and it is found as a fact that the surrounding circumstances are such and the court is of the opinion that a fair and impartial trial cannot be had in Carteret County.” It is further found as a fact “that the case has been discussed to such an extent that it would be difficult to find a sufficient number of jurors who have not formed an opinion in the cause,” etc.

It is apparent, therefore, that the trial judge found sufficient facts to warrant the removal and that sufficient facts appeared in the affidavits to support the finding and order. The judgment is

Affirmed.