Everett v. TOWN OF ROBERSONVILLE

174 S.E.2d 116 (1970)

8 N.C. App. 219

R. Frank EVERETT, H. T. Highsmith and H. H. Worsley, Co-Partners, trading and doing business as Planters Warehouse No. One and No. Two v. TOWN OF ROBERSONVILLE and Seaboard Coast Line Railroad Company.

No. 702SC102.

Court of Appeals of North Carolina.

May 27, 1970.

Certiorari Denied July 14, 1970.

*118 John A. Wilkinson, Wilkinson & Vosburgh, Washington, and Jordan, Wright, Nichols, Caffrey & Hill, by Welch Jordan and Mickey A. Herrin, Greensboro, for plaintiffs-appellees.

Paul D. Roberson, Robersonville, Clarence W. Griffin, Williamston, and Connor, Lee, Connor & Reece, by Cyrus F. Lee and J. M. Reece, Wilson, for defendant-appellant, Town of Robersonville.

Rodman & Rodman, by Edward N. Rodman, Washington, for defendant-appellant, Seaboard Coast Line Railroad Co.

PARKER, Judge.

Appellant contends that Judge May having denied plaintiffs' motion to remove which was entered prior to the trial, Judge Martin was without authority thereafter to enter the order appealed from. We do not agree.

Appellant cites the well established rule that ordinarily one superior court judge may not overrule or reverse the judgment of another superior court judge previously made in the same action. Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153. This rule, however, is not applicable to the situation presented by the present appeal.

A motion for change of venue or, in the alternative, that a jury be summoned from another county, on the ground that a fair and impartial trial cannot be obtained in the county in which the action is pending, is addressed to the sound discretion of the trial court. G.S. § 1-84; State v. Porth, 269 N.C. 329, 153 S.E.2d 10. Of necessity the court must exercise that discretion in the light of the situation existing when the decision is made. Should thereafter some significant change occur, it may become necessary, in the interest of assuring a fair trial, that the trial court be called upon again to exercise its discretion. In such case the discretion should be exercised in the light of the changed situation, and we see nothing in the statute, G.S. § 1-84, or in the rule which limits the power of one superior court judge to reverse a judgment of another, which prevents that this be done. In the present case a significant change occurred after Judge May's order was entered and prior to the time Judge Martin entered the order appealed from. The trial of this action was in itself sufficient to bring about a significant change in circumstances in the county in which the action was pending. This trial consumed approximately two full weeks of the court's time in a county which had only five weeks of regularly scheduled civil sessions of superior court during the entire year. Judge Martin had himself presided at that trial and had an opportunity to observe the extent of the public interest and discussion which the trial itself generated. It was proper for him to exercise his discretion in the light of the changed circumstances brought about by the trial itself.

Rutherford College v. Payne, 209 N.C. 792, 184 S.E. 827, cited by appellant, is distinguishable and is not here controlling. In that case the motion to remove was made as a matter of right on the ground that the principal office of the plaintiff corporation was not in the county in which the action *119 was instituted; obviously this presented a question which, when once decided by one superior court judge, could not be reviewed by another superior court judge in the same action.

Appellant's additional contention that Judge Martin's order must be reversed because not based upon affidavits as referred to in G.S. § 1-85 is also without merit. Ordinarily the power of the trial judge to remove an action in order to assure a fair and impartial trial is invoked pursuant to G.S. § 1-84. That statute requires the suggestion to be made on oath or affirmation and the order to be entered "after hearing all the testimony offered on either side by affidavits." The affidavits should set forth "particularly and in detail the ground of the application," and "[i]t is competent for the other side to controvert the allegations of fact in the application, and to offer counter affidavits to that end." G.S. § 1-85; Patrick v. Hurdle, 6 N.C.App. 51, 169 S.E.2d 239. Where facts are set forth in the affidavit, their sufficiency rests in the discretion of the judge and his decision upon them is final; but where no facts are stated in the affidavit as grounds for removal, the ruling of the trial court may be reviewed on appeal. Gilliken v. Norcom, 193 N.C. 352, 137 S.E. 136; Phillips v. Lentz, 83 N.C. 240. In addition, however, to the express statutory authority granted in G.S. § 1-84, the judge of superior court has the inherent discretionary power to order a change of venue ex mero motu when, because of existing circumstances, a fair and impartial trial cannot be had in the county in which the action is pending. English v. Brigman, 227 N.C. 260, 41 S.E.2d 732. Such was the case here. Judge Martin's order recites that it was entered "upon consideration of the entire record in this case, including the testimony given by the witnesses during the trial at the June 2, 1969, Civil Session of Superior Court of Martin County and the events which transpired during the trial." These events occurred in Judge Martin's presence. The sworn testimony of witnesses at the trial and the court's own observation of the events transpiring at the trial furnished sufficient basis for the court to invoke its inherent discretionary power to order the removal in the furtherance of justice. The fact that plaintiffs had filed and later renewed a motion to remove would not, under the circumstances of this case, compel the court to proceed only under the statutory authority and to forego exercise of its inherent judicial power. Nothing in the record indicates, and appellant does not contend, that it was denied full opportunity to be heard.

The order appealed from is

Affirmed.

CAMPBELL and VAUGHN, JJ., concur.