Patrick v. Hurdle

169 S.E.2d 239 (1969)

6 N.C. App. 51

J. H. PATRICK and Wachovia Bank & Trust Company, Executors of the Will of P. P. Gregory, Deceased v. Joe L. HURDLE.

No. 691SC367.

Court of Appeals of North Carolina.

August 27, 1969.

Leroy, Wells, Shaw & Hornthal, by L. P. Hornthal, Jr., Elizabeth City, for plaintiffs-appellees.

John T. Chaffin and Gerald F. White, Elizabeth City, for defendant-appellant.

BROCK, Judge.

Removal of a case for a "fair trial" under the provisions of G.S. § 1-84 is limited to removal to an adjoining county. Removal of a case "when the convenience of *240 witnesses and ends of justice would be promoted" under the provisions of G.S. § 1-83(2) is not limited to removal to an adjoining county.

Appellees state in their brief: "In any event, as far as the geography of the matter is concerned, Currituck and Pasquotank Counties seemingly adjoin in the Albemarle Sound." However, it seems from Judge Parker's order that plaintiffs and the Judge were doubtful that the two counties do adjoin, because the order concludes "* * * that the convenience of witnesses and the ends of justice would be promoted by the change * * *." This appears to be an attempt to order removal under G.S. § 1-83(2) which allows removal to a non-adjoining county.

A determination of whether Currituck and Pasquotank Counties adjoin in the Albemarle Sound is not necessary to a disposition of this appeal. The main problem presented here is whether the finding by the trial judge is supported by the evidence. The only evidence in the record is the affidavit of counsel for plaintiffs. There are only two paragraphs of facts alleged under oath in the affidavit. The two paragraphs of the affidavit are as follows:

"1. Without a special session of court this case cannot in all probability be tried in Currituck County until December 1969 or January 1970. The plaintiffs and, on information and belief, the defendant risk losing the testimony of witnesses through death or disability if there is a long delay in trial. The plaintiffs particularly would be prejudiced by the death of the defendant since plaintiffs would in that event be unable to offer certain evidence of transactions with him, and plaintiffs are informed and believe that the defendant's health is poor. Trial in Pasquotank County would be little or no inconvenience to witnesses and all attorneys have offices in and, a number of witnesses reside in, Pasquotank County. The plaintiffs are administering an estate of substantial size and all parties affected by it are prejudiced by the delay in the conclusion of this litigation since death taxes, bequests, and real property titles will not be completely settled until this litigation is terminated. Plaintiffs aver on information and belief that this case can be tried in Pasquotank County at the May 1969 Session. "2. The plaintiffs are informed and believe that the defendant and his activities generally and particularly his transactions with the late P. P. Gregory, have been known to many people and generally discussed in Currituck County for a long period of time, and it would be difficult to obtain a jury completely free of and uninfluenced by such knowledge and discussion. Such knowledge of the transactions between said parties are not well known and have not generally been discussed in Pasquotank County, and it is necessary in the interest of obtaining a fair trial that this cause be removed to Pasquotank or some other county."

The allegations of the first paragraph of the affidavit appear to allege grounds for removal for the purpose of obtaining a speedy trial, if such were authorized; but certainly they do not support a finding and conclusion "that the convenience of witnesses and the ends of justice would be promoted by the change." The allegations in the second paragraph are addressed entirely to an inability to obtain a fair trial in Currituck County, and they give no support to a finding and conclusion "that the convenience of witnesses and the ends of justice would be promoted by the change."

The only finding and conclusion by the trial judge was as follows: "* * * it appearing to the Court after considering the affidavits submitted by the parties and arguments of counsel that the convenience of witnesses and the ends of justice would be promoted by the change and that said motion should be allowed, in the discretion *241 of the Court." The order then directs the removal to Pasquotank County and peremptorily sets the case for trial at the May 1969 Session.

The affidavit might well give support to a finding and conclusion that a fair and impartial trial could not be obtained in Currituck County, but the trial judge made no such finding. So far as this record is concerned the trial judge did not base his finding and conclusion on facts in the record, and, therefore, the order exceeds the trial judge's discretionary authority.

A motion to remove for prejudice under G.S. § 1-84 is addressed to the sound discretion of the trial judge. Gilliken v. Norcom, 193 N.C. 352, 137 S.E. 136; Phillips v. Lentz, 83 N.C. 240. Likewise, a motion to remove when the convenience of witnesses and ends of justice would be promoted is addressed to the sound discretion of the trial judge. Gilliken v. Norcom, supra. However, when a motion to remove is made, facts must be stated particularly and in detail in the affidavit, or judicially admitted, showing the grounds for such removal. G.S. § 1-85; See, Gilliken v. Norcom, supra; Emery v. Hardee, 94 N.C. 787.

In Gilliken v. Norcom, supra, it was stated thus: "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 be, 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.' Citing cases."

For the failure of the evidence to support the findings and order of the trial judge, the order removing this cause from Currituck to Pasquotank must be

Reversed.

CAMPBELL and MORRIS, JJ., concur.