Gilliken v. . Norcom

Brogden, J. Is an order of removal upon tbe ground tbat a party cannot secure a fair and impartial trial reviewable in tbe Supreme Court ? Tbe plaintiff asked for removal of tbe cause under C. S., 471 and 472. Affidavits were filed in behalf of plaintiff, reciting in substance tbat tbe case bad been discussed generally in Carteret County to such an extent tbat “tbe whole population have formed or expressed an opinion one way or tbe other.” A large number of affidavits were filed in behalf of defendants, contradicting and controverting tbe affidavits filed by tbe plaintiff and asserting tbat a fair trial of tbe cause could be bad in tbe county in which tbe action was instituted. Tbe order of removal recites: “Tbe court finds tbat there are probable grounds to believe tbat a fair and impartial trial of tbe action cannot be bad in Carteret County, and tbe court came to tbis conclusion upon pérsonal observation during bis term of court there while trying two cases between these' parties.” Tbe statutes upon which tbe motion is based contemplates tbat affidavits for removal must “set forth particularly in detail tbe *354 ground of the application.” 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 he 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.” S. v. Smarr, 121 N. C., 672; S. v. Turner, 143 N. C., 641; Garrett v. Bear, 144 N. C., 23; Oettinger v. Live Stock Co., 170 N. C., 152; Byrd v. Spruce Co., 170 N. C., 429. In Oettinger v. Live Stock Co., supra, the rule was declared to be: “The Supreme Court will not review the denial of the Superior Court judge of a motion to remove for the convenience of witnesses or for that the ends of justice will be promoted.” To the same effect is the rule declared in Byrd v. Spruce Co., supra, Justice Allen observing: “The motion to remove the action for trial to another county in the interest of justice was addressed to the discretion of the court and is not reviewable.” Applying these rules of law, it appears from the record that, while the judge stated in the order of removal, “the court came to this conclusion upon personal observation,” etc., yet the order of removal further recites “and it is found as a fact that the surrounding circumstances are such and the court is of the opinion that a fair and impartial trial cannot be had in Carteret County.” It is further found as a fact “that the case has been discussed to such an extent that it would be difficult to find a sufficient number of jurors who have not formed an opinion in the cause,” etc. It is apparent, therefore, that the trial judge found sufficient facts to warrant the removal and that sufficient facts appeared in the affidavits to support the finding and order. The judgment is Affirmed.