Opinion
10540
December 20, 1920.
Before PRINCE, J., Lexington, March, 1920. Affirmed.
Action by Panama Real Estate Co. against Dime Savings Bank and Citizens Bank of Charleston et al. From order refusing a motion for change of venue, the defendants named appeal.
Messrs. Smythe Visanska and Hagood, Rivers Young, for appellants, cite: Domestic corporations must be sued in county of their legal residence: 79 S.C. 555; 74 S.C. 438. Defendant entitled to trial in county of residence unless case is within exceptions of sec. 176, Code Proc. 1912: 110 S.C. 334; 22 S.C. 276; 25 S.C. 385; 11 S.C. 122. Sub. C. of sec. 172, Code Proc., is the only part of that section applicable and mortgage is not real property or an estate or interest therein: 26 S.C. 401; 32 S.C. 134; 32 S.C. 215; 32 S.C. 599; 27 S.C. 309; 30 S.C. 409; 38 S.C. 138; 110 S.C. 99; 2 L.R.A. 328; 43 S.E. (W.Va.) 102; Story Eq. Jur., secs. 506, 1215; 56 Miss. 394; 11 Ves. 617; 12 N.Y. 519. Messrs. DePass DePass, for respondent, cite: Case falls under subd. I of sec. 172, Code Proc. 1912: 107 S.C. 426; 103 S.C. 263. Change on the ground of convenience of witnesses is discretionary: 6 S.C. 314; 13 S.C. 441; 55 S.C. 389; 54 S.C. 370; 110 S.C. 463.
December 20, 1920. The opinion of the Court was delivered by
This is an appeal from an order of Judge Prince, refusing to change the place of trial from Lexington county to Charleston county. The motion was based upon two grounds:
(1) Because Lexington county was not the proper county.
(2) Because the convenience of witnesses and the ends of justice would be promoted by the change.
The motion was refused, but the grounds upon which the refusal was based were not stated. If the refusal can be sustained on either ground, it must be sustained. The refusal on the second ground was clearly within his Honor's discretion, and we do not see that he has abused his discretion.
The first ground need not be considered. See Moore v. Arthur, 113 S.C. 112, 101 S.E. 640.
The order appealed from is affirmed.
MESSRS. JUSTICES HYDRICK and WATTS concur.
MR. CHIEF JUSTICE GARY and Mr. JUSTICE GAGE absent on account of sickness.