172 S.E. 209 | N.C. | 1934
STACY, C. J. dissents. This action was heard on the motion of the defendants, made in apt time, and as a matter of right, that the action be removed from the Superior Court of Wake County, where it was begun and where it is now pending, to the Superior Court of Forsyth County, for trial.
The defendants contended at the hearing of their motion that it appears from the allegations of the complaint that this is an action for the foreclosure of a mortgage on land in Forsyth County, and that for this reason they are entitled, as a matter of right, to its removal to said county, for trial.
The plaintiff contended, on the other hand, that it appears from its prayer for relief that the action is to recover of the defendants the sum of $2,350.71, with interest from 21 August, 1933, and not for the foreclosure of the mortgage described in the complaint, and that for this reason, the action should be tried in Wake County, where the plaintiff, a corporation organized under the laws of this State, has its principal place of business.
The motion was denied, and the defendants appealed to the Supreme Court.
The plaintiff is a corporation, organized under the laws of this State, with its principal place of business in the city of Raleigh, Wake County. The defendants are citizens of this State, and are residents of Forsyth County. The action was begun and is now pending in the Superior Court of Wake County, which is the proper venue for its trial (C. S., 469,Smith-Douglass Co. v. Honeycutt,
The nature and purpose of an action is to be determined by the allegations of the complaint, and not by the prayer for relief on the facts alleged in the complaint. Jones v. R. R.,
In the instant case, on the facts alleged in its complaint, the plaintiff prays judgment.
"1. That it recover of the defendants the sum of $2,350.71, with interest thereon from 21 August, 1933;
2. For the costs of the action;
3. For such other and further relief as plaintiff may be entitled to in law or equity." *536
If the allegations of its complaint are established by its proof at the trial, the plaintiff will be entitled not only to the specific relief prayed for, but also to a decree foreclosing the mortgage executed by the defendants, by which the payment of the sum of $2,350.71, and interest is secured. The land conveyed by the mortgage is in Forsyth County. That county is therefore the proper venue for the trial of the action, and there was error in the denial of defendants' motion for the removal of the action to said county for trial.
Where on the facts alleged in his complaint, the plaintiff is entitled not only to a judgment that he recover of the defendant the amount of his debt, but also to a decree for the foreclosure of the mortgage by which his debt is secured, and the action was begun and is pending in the county in which the plaintiff resides, but the land conveyed by the mortgage is in another county, the plaintiff cannot deprive the defendant of his right, under the statute, to the removal of the action to the county in which the land is situate, for trial, by his failure to pray for a foreclosure of the mortgage, at least, when he prays judgment for his debt, and also for such other and further relief as he may be entitled to, in law or in equity, on the facts alleged in his complaint. If the law were otherwise, the defendant could be deprived of a right conferred by statute (C. S., 463 (3), and not resting in the discretion of the court, or dependent upon the arbitrary choice of the plaintiff. In such case, the plaintiff has not surrendered his right to a decree of foreclosure, in the event he recovers judgment for his debt, and may, after the trial, insist upon such right. This the law does not, and ought not to tolerate.
Reversed.
STACY, C. J., dissents.