98 S.E. 774 | N.C. | 1919
This action was brought to recover a debt secured by a conditional (534) sale note. The plaintiff, who lives in Forsyth, also sought to recover possession of the personal property — one piano, described in the note, which was situated in Lee County. Plaintiff demands possession of the piano and for an order to sell the same and apply the proceeds of the sale to the payment of the note sued on.
Defendants are residents of Lee County where, as defendants allege, the contract was made. Plaintiff lives in Forsyth County, where this action was commenced and is pending. Defendants, in apt time and in writing, moved to dismiss the action because the court had no jurisdiction to try the case. This motion was overruled, and defendants excepted. They then asked, in writing, that the case be removed to the Superior Court, so that the trial can be held in the proper county, as provided by statute. This request was also denied, and they again excepted.
The facts found by Judge Starbuck, as to the motions, were as follows: "The plaintiff is, and was at the time of beginning this action a resident of Forsyth County. The piano described in the complaint is, and was at the time of beginning his action, at the home of the defendants in Lee County, and the defendants are now and were then residents of Lee County. The court is of opinion, under section 2 (b), 9 and 17 of the acts creating the Forsyth County Court, chapter 520, Public Local-Laws of North Carolina, session 1915, that actions falling *563 within the provisions of civil procedure relating to venue are removable from said court to the Superior Courts of other counties, but upon inspection of the complaint the court considers that the plaintiff's cause of action is for the recovery of the amount alleged to be due by the defendants to the plaintiff on the note set out in the complaint, and that the recovery of possession of the piano is incidental thereto for the purpose of foreclosure and application of so much of the proceeds as may be necessary to the satisfaction of the judgment on the note. It is therefore ordered that the motion to dismiss be denied and that the motion to removed be denied."
In the Superior Court, the findings of fact by Judge Starbuck were approved and adopted as those of the latter court, which affirmed the ruling of the County Court, and refused to dismiss the action or to remove it. Defendants again excepted and appealed.
While, as a general rule, an appeal does not lie from the refusal to dismiss an action, Pell's Rev., p. 313, sec. 587, where many of the cases are collected, it does lie from a refusal to remove because of a wrong venue. Pell's Rev., p. 309, ch. 12, sec. (535) 587, citing Brown v. Cogdell,
the matter has been thoroughly well settled by our decisions and an independent discussion of it is not called for. A removal was requested inWoodard v. Sauls,
It is also apparent, from reading the two cases, that Mfg. Co. v.Brower,
There was no error in the proceedings of County and Superior Court.
Affirmed.
Cited: Chemical Co. v. Turner,