94 S.E. 109

ADAMS ET AL. v. FRIPP ET AL.

9789Supreme Court of South Carolina.
August 8, 1917.

Before DeVORE, J., Columbia, February, 1917. Reversed.

Action by E.C.L. Adams and others against W.C. Fripp and others. From an order denying a change of venue, the defendants, other than Fripp, appeal.

James Simons and Mitchell Smith and Benet, Shand McGowan, for appellants, submit: Order is appealable: 6 S. C . 313; 9 S.C. 284; 38 S.C. 399; 46 S.C. 317; 54 S.C. 368; 55 S.C. 384. Power at chambers: 74 S.C. 516. Residence:

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73 S.C. 181. Distinguished from 101 S.C. 144 Abuse of discretion: 46 S.C. 317; 83 S.C. 476; 47 S.C. 499 Place of trial: 11 S.C. 122, 132.

Messrs. Lyles Lyles and Nettles Tobias, for respondent.

August 8, 1917. The opinion of the Court was delivered by

MR. JUSTICE GAGE.

The appeal by all the named defendants save one is from an order of the Circuit Court, wherein the Court refused to change the venue from Richland to Charleston county.

The case arises out of the sale of an extensive pecan grove situate in Charleston, and owned formerly by the late Dr. John S. Horlbeck, to a company of gentlemen resident in and around Columbia, in Richland county, calling themselves the South Atlantic Pecan Company. Dr. Horlbeck is now dead, and his widow, Mrs. Elizabeth Horlbeck, and his son, Fred. H. Horlbeck, both defendants, are his duly constituted legal representatives. The defendant, Haselden, married a daughter of Dr. Horlbeck. The other defendant, Fripp, is the storm center of this motion.

The plaintiffs allege that Fripp was the agency employed by Dr. Horlbeck, through whom Dr. Horlbeck and Haselden committed a fraud on them by deceiving them into buying the grove. The case does not set out all of the contents of the complaint, but it does state that the action is for $250,000 damages to the plaintiffs arising out of the sale and the fraud connected with it.

The Horlbeck defendants allege that Fripp was a party acting with the Columbia men, and ought to be a plaintiff if a wrong has been done; and that the plaintiffs have only named Fripp as a defendant in order to lay the venue in Richland, as Fripp resides there and all the plaintiffs live there. The case does not set out what matter Fripp

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answered; it only appears that he did plead. He made no affidavit on the motion.

The first suggestion of the respondents is that the order of the Circuit Court is not subject to appeal, and that because the motion was only to change the venue in order to promote “the convenience of witnesses and ends of justice,” and of that the Circuit Court was the exclusive judge, unless the error of the Court is so manifest as to make the exercise of the Courts discretion an error of law.

If the respondents’ premise is right, then the conclusion is right, but the premise is not right, for, while the motion was made on the ground stated, it further noticed the plaintiffs that “moreover the defendants (the Horlbecks) are the real defendants,” etc. And nearly all the proof of the movants was directed to show that Fripp had no connection with the sale except as he acted for the plaintiffs and as one of them. That was the vital issue before the Court, made so by the testimony. If the testimony is manifestly true, then “the county designated for (the place of trial) * * * in the complaint is not the proper county.” Subdivision 1, sec. 176, Code Civ. Proc. 1912.

We have examined the testimony with distinct care, and that makes it altogether plain that Adams, Weston and Fripp on the one part, agreed with John S. Horlbeck on the other part to buy the grove; that Adams, Weston and Fripp took possession of the property, and Fripp managed it; that Fripp and the other Columbia men organized the South Atlantic Pecan Company, and the grove was conveyed to it, and that the same persons bought another grove in Georgia.

A cause already before this Court links Fripp with the Columbia gentlemen. Bank v. Fripp, 101 S.C. 186, 85 S.E. 1070. The only testimony contra is the affidavit of Mr. Lyles that:

“From the statements of the several plaintiffs made to him and from documents which have come into his hands

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to be considered, he verily believes that there is strong evidence to establish fraudulent collusion between the defendant, Fripp, and the defendant, Haselden, and the late John S. Horlbeck, now deceased, during his lifetime to induce these plaintiffs to embark in the purchase of the pecan groves and other real estate referred to in the complaint.”

And the affidavit of Messrs. Aycock, the Westons, and Adams that:

“He is advised by said counsel that his testimony is material and necessary to the determination of the issues arising in said cause. They further say, each for himself, that they are advised by their counsel and verily believe that there is strong evidence which can and will be adduced to establish the fact that the defendant, Fripp, was in combination with the defendant, Haselden, and the late John S. Horlbeck, for the sale of the pecan groves and other real estate referred to in the complaint.”

These gentlemen set out no fact, but only an inference. Mr. Lyles swears that, from the plaintiffs’ statements to him and documents in his hands, he believes a case of collusion betwixt Fripp and the Horlbecks can be made out. The other gentlemen swear that counsel (Mr. Lyles) advises them, and they believe, there is strong evidence to establish the said collusion. So both affidavits rest upon Mr. Lyles’ conclusion drawn from evidence not disclosed. Upon proof of that character, any citizen might be hailed into Court out of his own county, and thus deprived of a very substantial right.

The testimony on the two sides does not balance, as it did in Barfield v. Coker; had that been so, we would not disturb the discretion exercised by the Circuit Court. The testimony for the movants so preponderates that we are persuaded that the Court was manifestly wrong not to have concluded that the venue had been laid in the wrong county.

Of course, we do not conclusively find the ultimate fact that Fripp did not collude with the Horlbecks: that is the

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issue to be tried in the action. We only conclude that upon the showing made below, for the purposes of right venue, the movants have plainly proved enough to entitle them to the order they asked for.

The order of the Circuit Court is reversed, with direction to change the venue.