Summary
In Barrow v. Gowdy, 114 S.C. 122, 103 S.E. 477 (1920), we specifically held that venue of an action for specific performance is proper in the county where the land is located, notwithstanding the defendant was a resident of another county. Because the action in Barrow was one to determine the interest of the plaintiff in real property situated in Clarendon County, the action was tried in Clarendon County where the land was situated.
Summary of this case from Truck South, Inc. v. PatelOpinion
10415
June 28, 1920.
Before TOWNSEND, J., Clarendon, Summer term, 1919. Affirmed.
Action by J.M. Barrow against S.M. Gowdy for specific performance. From an order denying a motion for change of venue, defendant appeals.
Messrs. Arrowsmith, Muldrow, Bridges and Hicks, for appellant, cite: Place of trial of civil actions: Secs. 172-174 Code. Residence of defendant proper place of trial unless case is one where jury trial can be demanded as of right, in which case trial must be had in county where land is situated: 40 Cyc. 57, 58, 59, 63; 61 S.C. 512. Cases cited in Judge Townsend's order differentiated from case at bar. Mr. W.C. Davis, for respondent, cites: Action for specific performance not solely an action in personam: 110 S.C. 493. Courts of equity have jurisdiction: 2 DeSaus. 271; Bail. Eq. 360-366; 23 Am. Dec. 170; 6 Rich. Eq. 114. Subject matter being laid in Clarendon county place of trial regulated by sec. 172, Code 1912.
June 28, 1920. The opinion of the Court was delivered by
The sole question raised by this appeal is whether the county designated for the purpose of trying the action in the complaint is the proper county or not.
The defendant is a resident of Florence county, and plaintiff is seeking specific performance of a contract to convey land situate in Clarendon county and brought his suit for specific performance in the Court of Common Pleas for Clarendon county. A motion was made before Judge Townsend to change the venue from Clarendon county to Florence county, which motion was refused.
The exceptions must be overruled. The subject matter of the action is the land situated in Clarendon county, and the place of trial is regulated by Code of Civil Procedure of 1912, section 172. The action is one to determine the right or interest of the plaintiff in real property situated in Clarendon county, and must be tried in Clarendon county, where the land is situated.
Judgment affirmed.