43 N.C. App. 678
N.C. Ct. App.
1979

Lead Opinion

HILL, Judge.

Frоm the outset, it is clear that the language of the amendment is mandatory. If the defendant makes the motion for change of venue, the judge shall grant it.

Furthermore, it is clear that thе amendment to G.S. 50-3 is retroactive. “[Statutes or amendments pertaining to procedure are generally held to operate retrospectively, where the statutе or amendment does not contain language clearly showing a contrary intention.” (Citations omitted.) Smith v. Mercer, 276 N.C. 329, 338, 172 S.E. 2d 489. G.S. 50-3 contains no such language.

Venue means the place of trial. Lovegrove v. Lovegrove, 237 N.C. 307, 74 S.E. 2d 723 (1953). It is the place where the power to adjudicate is to be exеrcised. Venue is not a jurisdictional question but a procedural one. 77 Am. Jur. 2d, Venue § 1, p. 832. In North Carolina it is clear that, “. . . a change in the statutory method of procedure for thе enforcement or exercise of an existent right is not prohibited by any constitutional provision, unless the alteration or modification is so radical as to impair the оbligation of contracts or to divest vested rights.” Bateman v. Sterrett, 201 N.C. 59, 62, 159 S.E. 14 (1931).

The retroactive application of venue statutes to causes of action which accrued prior to the еffective date of the statute is proper. No vested right is destroyed, nor does a question of construction arise where a venue statute, by its own provisions, is declared to apply to transactions entered into prior to the passage of the statute. See 12 Strong’s N.C. Index 3d, Statutes § 8, p. ‍‌‌‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​‌​‌‌​​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌​‍81; 77 Am. Jur. 2d, Venue § 4, p. 837.

Generally, a statute fixing venue is applicablе even to actions pending on the effective date of the statute. United States v. National City Lines, 80 F. Supp. 734, 738 (S.D. Cal. 1948).

We draw the line there, however. A venue statute is not applicable in determining the rights of parties, where it becomes effective after the trial court has made a decision settling the question of venue. 77 Am. Jur. 2d, Venue § 4, p. 837; 41 A.L.R. 2d § 4, p. 805. In this case, the trial court ruled on 15 October 1977 that venue in Wayne County was proper. The amendment became effective on 16 June 1978, and thus is not determinative of venue in this case.

No North Carolina courts have ruled on this matter. We must examine opinions from courts in our sister states to support our conclusion.

Osborn Funeral Home v. State Bd. of Emb., 162 So. 2d 596 (1964), is a сase that resembles ours factually. Plaintiff had filed an action in Caddo Parish, in which it did business. Defendant filed a motion to remove to Orleans Parish where it was headquartered. The triаl judge granted defendant’s motion, but on appeal, was reversed. Defendant subsequently filed answer. On 1 July 1963, an ‍‌‌‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​‌​‌‌​​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌​‍amendment was enacted which set the venue for all actions agаinst defendant in Orleans Parish. Defendant then moved to change venue, but lost again in the Court of Appeal. The court held that its original order refusing the motion to change venue established a vested right in the plaintiff to have the case tried in Caddo Parish.

People v. Pinches, 214 Cal. 177, 4 P. 2d 771 (1931) is also helpful. There, suit was brought by the state in Sacramento County. Upon motion of the defendant, venue was changed to his home county, Mendocino. Subsequently, a statute was passed requiring that such action be tried in Sacramento. The court stated that, “Whatever may be the force and effect of said amendment, it can have no bearing upon the merits of this appeal, as the order appealed from was made long prior to the enactment of the amendment.” Pinches, at p. 182.

Appellee in his brief and in oral argument has suggested that two Tennessee cases, Mid-South Milling Co., Inc. v. Loret Farms, Inc., 521 S.W. 2d 586 (1975), and Saylors v. Riggsbee, 544 S.W. 2d 609 (1976), are authority contrary to the two cases previously cited. Upon close reading, it is clear that the four cases are consistent with each other. Mid-South and Saylors merely state what this Court agrees the law to be; that is, that vеnue statutes ‍‌‌‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​‌​‌‌​​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌​‍can be applied retroactively in situations where the cause of action accrued, or where suit was pending before passage of the statute.

In the instant case, the trial court three times has made a final judgment estаblishing venue. Each judgment preceded the passage of the amendment mentioned herein. First, the defendant, claiming that plaintiff was not a resident of Wayne County, sought to remove from that county pursuant to Rule 12(b). The trial court denied the motion, and this Court affirmed. Next, defendant filed a motion for absolute divorce in Johnston County. The Supreme Court held thаt the claim was a compulsory counterclaim in plaintiff’s Wayne County action. Finally, defendant moved to change venue pursuant to G.S.l-83(2). The trial court denied the motion, and this Court affirmed. In each case, a final judgment was made establishing venue in Wayne County. In each case, defendant either exercised or abandoned any judicial steрs he could take to challenge venue.

Plaintiff must be able to rely on the judicial system’s final determination of venue. To hold otherwise would be to throw our legal system into chаos and encourage legal maneuvering in the legislature rather than in the courts where both parties’ interests are represented.

For the reasons stated above, the order of 16 November 1978 removing the cause of action to Johnston County is

Reversed.

Judge ERWIN concurs. Judge VAUGHN dissents.



Dissenting Opinion

Judge VAUGHN

dissenting.

I do not find the two foreign cases relied on by the majority either authoritative or persuasive. In the first place, neither case applies a statute as explicit as the one in question. Moreover, in People v. Pinches, supra, the California Court was considering a trial court order rеspecting venue that had been entered prior to the enactment of the venue amendment. As the Court pointed out, it is perfectly obvious that the ‍‌‌‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​‌​‌‌​​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌​‍amendment could hаve no bearing on the merits of the appeal from that order. Here, of course, the appeal is from an order entered after the enactment of the аmendment and obeying its mandate. In Osborn Funeral Home v. Louisiana State Board of Embalmers, supra, a decision of an intermediate appeals court in Louisiana, the Court based its decision on its understanding of the Louisiana Constitution and statutes. Among other things, the Court said that under its statute the venue motion was not timely because it was not filed until after answer on the merits had been filed.

I respectfully suggest that the judgment in the case should be affirmed. In her response to defendant’s motion for a change of venue, plaintiff asserted only that she could not have a fair trial in Johnston County. No questions conerning the constitutionality of the statute were raised or passed upon in the trial court. I assume it is for that reason that the majority does not discuss the constitutional questions appellant seeks to argue on appeal. “Since the constitutionality of the statute in questiоn was not passed upon in the trial court, it was not properly before the Court of Appeals and is not now properly before us.” City of Durham v. Manson, 285 N.C. 741, 743, 208 S.E. 2d 662, 664 (1974).

The majority, correctly I believе, concludes that the statute is mandatory, that it is procedural and that it may be applied retrospectively to pending litigation. The majority holds, nevertheless, that it doеs not apply to this case. It is here that we disagree. It seems to me that the amendment was tailor-made for the case at bar, and I do not understand the majority to say that it was beyond the power of the General Assembly to enact the amendment. At the time the action was commenced, the applicable statute, G.S. 50-3, provided that the summons was returnable to the county in which either plaintiff or defendant resided. Defendant resided in Johnston. Plaintiff alleged that she was a resident of Wayne and the summons was returned thеre. The 1978 amendment to G.S. 50-3 made no changes in this procedure so long as plaintiff remained a resident of the State: It does provide a procedure, however, for a change of venue to the county of defendant’s residence of plaintiff thereafter becomes a nonresident. The parties stipulated that plaintiff became a nonresident. The act expressly provides that “the action may be removed upon motion of the defendant, for trial or for any motion in the cause, either bеfore or after judgment, to the county in which the defendant resides. The judge, upon such motion, shall order the removal of the action . . . .” G.S. 50-3.

I do not agree that the earlier decisions on venue take the case out of the operation of the statute. All that the first venue hearing determined was that Wayne County was the county in which plaintiff then residеd. That decision is not under attack here. The other venue hearing determined that the convenience of witnesses and ends of justice did not require a change of venuе to ‍‌‌‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​‌​‌‌​​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌​‍Johnston. That decision is not under attack here. The statute has not been changed with respect to where a summons may be returned. It only provides a procedure for a change in venue when a plaintiff changes her or his status from that of a resident to a nonresident. I believe that the late Judge Hardy correctly followed the mandate of the statute and would affirm his judgment.