Phillips v. . Lentz

Ashe, J. The removal of causes, civil.or criminal, from, one county to another for trial, is authorized by the act of 1808—Rev. Stat., ch. 31, § 120, and Rev. Code, ch. 31, § 115. This section of the Revised Code was not brought forward in Battle’s Revisal, and the legislature deemed it necessary to pass the act of 1875, ch. 19, which revived sections 115, 116, 117 and 118 of the Revised Code, except that portion qf section 115 with reference to slaves. This section (115) omitting the clause referring to slaves, reads: “ In all causes-in the superior courts, civil or criminal, in which it shall be suggested on oath, on behalf of the state, of the traverse *242 r of the indictmen t, or of the plaintiff or defendant, that there are probable grounds to believe that justice cannot be obtained in the county in which the causes shall be pending the judge is hereby authorized to order a copy of the record of the cause to be removed to some adjacent county for trial provided however, that no cause shall be removed, unless the facts are set forth whereon the party founds his belief that justice cannot be obtained in the county, so that the judge may decide upon such facts, whether the belief is well grounded.” The construction given to this section by this court, is, the sufficiency of the affidavit for the removal lies in the discretion of.the superior courts, and their discretion ione which this court cannot review. The first act on this subject was the act of 1806, under the provisions of which .a cause might be removed if it was suggested on oath that there were probable grounds that justice could not be obtained in the first county. The construction given to this act-was, that a parly was entitled to the removal of his cause whenever he made affidavit that there were prob.able grounds for such removal the effect of which was ter ir ake him the judge in his own case and leave nothing to the discretion of the court — a mischief, to remedy which the act of 1808 was passed, which required the facts to be set forth, so that the judge might decide upon such facts, whether the belief was well grounded. In the case of State v. Duncan, 6 Ired., 98, Chief Justice Ruffin said, the act of 1808 (Rev. Stat., ch. 31,§ 120)‘requires the affidavit to set forth the facts whereon the deponent founds the belief that justice cannot be obtained, and expressly states "the reason therefor to be ‘'that ithe judge may decide upon such facts, whether the belief is well grounded.” And it is held in that case that the application of a party to remove his cause, is a ques'inn addressed .to the discretion of the judge of the superior court; and his *243 decision, as in other cases of discretion, is final and cannot be reviewed in this tribunal. Reynolds v. Boyd, 1 Ired., 106; State v. Lamon, 3 Hawks, 175; Cannon v. Beeman, 3 Dev., 363. We are aware that there are some cases decided by our court which seem to be in conflict with these authorities, as for instance, the cases of State v. Seaborn, 4 Dev. 305; S hepherd’s case, 8 Ired., 195, and Twitty’s, 2 Hawks, 248, where this court has reviewed the decisions of the courts below upon the sufficiency of affidavits for removal. But in looking into those cases, it will be seen that the orders of removal were founded upon affidavits that did not come up to the requirements of the statute. As in Twitty’s case, where the cause was removed on an affidavit on the part of the state, which stated the belief of the deponent without setting forth the facts on account of the existence of which the trial was prayed to be removed from the superior court of Burke to that of Lincoln, this court held the removal to be contrary to law, and added, “ if such facts had been set forth, the judge of the superior court, and he alone, must have decided them.” 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. There is no error. Let this ]>e certified, &c. No error. Affirmed.