Gilliken v. Norcom

3 Citing cases

  1. State v. Moore

    258 N.C. 300 (N.C. 1962)   Cited 5 times

    Section 196 provides that, in all civil and criminal actions upon affidavits in behalf of either party that justice cannot be obtained in the county in which the action is pending, `the judge shall be authorized to order a copy of the record of said action to be removed to some adjacent county for trial, if he shall be satisfied that a fair trial cannot be had in said county.' Section 197 says that it shall be competent for the other side to offer counter affidavits, and `the judge shall not order the removal of any such action unless he shall be satisfied, after thorough examination of the evidence as aforesaid, that the ends of justice demand it.' * * * It has always been held that the granting or refusing to grant an order of removal is a discretion which the law-making power has vested in the trial judge and that his action is not reviewable." S. v. Turner, 143 N.C. 641, 57 S.E. 158; Oettinger v. Live Stock Co., supra; Gilliken v. Norcom, 193 N.C. 352, 137 S.E. 136. An examination of our present statutes, G.S. 1-84 and 1-85, will reveal some changes in the wording thereof but not in legal effect.

  2. Everett v. Town of Robersonville

    8 N.C. App. 219 (N.C. Ct. App. 1970)   Cited 5 times

    " The affidavits should set forth "particularly and in detail the ground of the application," and "[i]t is competent for the other side to controvert the allegations of fact in the application, and to offer counter affidavits to that end." G.S. 1-85; Patrick v. Hurdle, 6 N.C. App. 51, 169 S.E.2d 239. Where facts are set forth in the affidavit, their sufficiency rests in the discretion of the judge and his decision upon them is final; but where no facts are stated in the affidavit as grounds for removal, the ruling of the trial court may be reviewed on appeal. Gilliken v. Norcom, 193 N.C. 352, 137 S.E. 136; Phillips v. Lentz, 83 N.C. 240. In addition, however, to the express statutory authority granted in G.S. 1-84, the judge of superior court has the 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 action is pending.

  3. Patrick v. Hurdle

    169 S.E.2d 239 (N.C. Ct. App. 1969)   Cited 5 times

    [2-4] A motion to remove for prejudice under G.S. 1-84 is addressed to the sound discretion of the trial judge. Gilliken v. Norcom, 193 N.C. 352, 137 S.E. 136; Phillips v. Lentz, 83 N.C. 240. Likewise, a motion to remove when the convenience of witnesses and ends of justice would be promoted is addressed to the sound discretion of the trial judge.