Summary
holding superior court judge "had the inherent power ex mero motu to order a change of venue" after concluding a fair and impartial trial could not be held in original county
Summary of this case from Zetino-Cruz v. Benitez-ZetinoOpinion
(Filed 26 March, 1947.)
Venue § 4e —
The judge of the Superior Court has 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 case is called for trial.
APPEAL by defendants from Alley, J., at September Term, 1946, of HAYWOOD.
Roberts Baley and Jones Ward for plaintiff, appellee.
Foy C. Francis, John M. Queen, and J. W. Haynes for defendants, appellants.
BARNHILL, J., concurring.
This is a civil action for damages resulting from the wrongful imprisonment of plaintiff, which he alleges was induced and procured through the conspiratorial acts and conduct of defendants.
The action was instituted in Madison County. Defendants moved to remove the cause to some other county for trial for that they could not obtain a fair and impartial trial in Madison County. When the motion came on to be heard the court, by and with the consent of the parties, entered an order removing the cause to Haywood County.
The case came on for trial at the September Term, 1946, in Haywood County Superior Court. After five days had been consumed in the trial the court found it necessary to withdraw a juror and order a mistrial. The court thereupon found certain facts, concluded that a fair and impartial trial could not be had in Haywood County, and, ex mero motu, ordered the cause transferred to Macon County for trial. Defendants excepted and appealed.
This appeal poses but one question, namely: Did the judge of the Superior Court on his own motion, in his own discretion and in the furtherance of justice, have the authority to transfer the case from Haywood to Macon County?
We are of opinion and so hold that the answer is in the affirmative. When the judge of the Superior Court is confronted with a state of facts, as was his Honor, Judge Alley, we think the court had the inherent power ex mero motu to order a change of venue.
". . . according to the weight of authority a court in a criminal case has inherent power, even in the absence of express statutory authority, to order a change in a place of trial from one county to another if and when satisfied that a fair and impartial trial cannot be had within the county where the venue is laid in the indictment. Such power existed at common law, and, therefore, unless specifically denied by statute, still adheres in the courts of the country. . . . The authority to change the venue of civil cases under appropriate circumstances seems also to have existed at common law and to have become a part of our judicial system." 27 R. C. L., sec. 30, p. 810. See also opinion of Stacy, C. J., in concurring opinion in Miller v. Miller, 205 N.C. 753, 172 S.E. 493, in which he states: "It is conceded that a court of general jurisdiction such as our Superior Courts may have inherent power, even in the absence of express statutory authority, to order an change of venue," citing Crocker v. Justices, 208 Mass. 162, 21 Ann. Cas., 1061, and Note.
The judgment below is
Affirmed.