32 S.E.2d 27 | N.C. | 1944
Civil action for recovery of damages for alleged wrongful death, G.S., 28-173, formerly C. S., 160, to which action the city of New Bern, a municipal corporation, was made a party defendant upon motion of defendant, Power Company, under G.S.,
Pursuant thereto the city of New Bern, being served with summons, made a motion in apt time, G.S.,
When this motion for removal as a matter of right came on for hearing before the judge of the Superior Court to whom the city of New Bern appealed from adverse ruling of the clerk of the Superior Court, G.S., 1-583, the judge found facts substantially these:
That the plaintiff is the duly appointed, qualified and acting administratrix of the estate of Frank Wilson Godfrey, deceased, under appointment by the clerk of the Superior Court of Mecklenburg County, North Carolina, where the estate is being administered under the laws of the State of North Carolina; that at the time of his death, and for many years prior thereto, plaintiff's intestate was a resident and citizen of Mecklenburg County, North Carolina, as was the plaintiff, Mrs. Jessie M. Godfrey, at the time of the institution of this action, and now is; that the intestate of plaintiff was killed on 10 June, 1942, in Craven County, North Carolina; that this action was instituted, and summons was issued in the Superior Court of Mecklenburg County on 28 April, 1943, against defendant Tidewater Power Company, a corporation organized and existing according to law, and C. B. Bartling and Ralph Applewhite, upon whom the summons was duly served 29 April, 1943; that the answer, cross action and motion of defendant, Tidewater Power Company, to make the city of New Bern a party defendant were filed on 28 July, 1943; that before its time for answering expired, and in apt time, the city of New Bern, a municipal corporation, in Craven County, North Carolina, filed motion to remove the action to Craven County as a matter of right; and that the acts of negligence alleged in the complaint and in the cross action are alleged to have occurred in said Craven County.
Upon these facts judgment was entered denying the motion for removal and the city of New Bern appeals therefrom to the Supreme Court and assigns error. Is the city of New Bern, a municipal corporation, located in Craven County, where the plaintiff's alleged cause of action arose, entitled as a matter of right to have the action removed from Mecklenburg County, where plaintiff resides, to Craven County for trial, when the plaintiff makes no allegation and seeks no relief against the city, and it is brought into the action as a party defendant on motion *659 and cross action of an original defendant, Tidewater Power Company, for contribution as a joint tort-feasor in the event it, the Power Company, be held liable to plaintiff? The court below did not think so. We are of opinion, however, that the decisions of this Court construing the statutes on venue, now General Statutes 1 Civil Procedure, subsection IV, Article 7, direct an affirmative answer.
At the outset it is appropriate to note that this chapter on venue is subdivided into numerous sections, including G.S.,
Moreover, the decisions of this Court are uniform in holding that since a municipality may act only through its officers and agents, an action against a municipality is an action against "a public officer" within the meaning of the provisions of G.S.,
Furthermore, in Banks v. Joyner, supra — a case almost identical in procedural situation as that in hand, it is said that "The order removing the case from Wilson County to Halifax County was in accord with our practice so long as the town of Weldon, located in Halifax County, remained a party defendant . . ." There, as appears in the original record on appeal, the plaintiff instituted the action in Wilson County, of which she was a resident, on a cause of action for personal injury allegedly sustained through the actionable negligence of the intestate in an automobile accident in the town of Weldon in Halifax County. The plaintiff named as the sole defendant J. C. Joyner, Administrator of the estate of J. J. Amerson, deceased. Amerson was a resident of Wilson County and letters of administration were issued out of the Superior Court of that county. In apt time the named defendant moved to make the town of Weldon a party defendant (1) for exoneration for that the injury of which plaintiff complained was solely and proximately caused by the negligence of the town of Weldon in the manner alleged, and (2) for contribution for that if the defendant be held negligent, the negligence of the town of Weldon was a proximate cause of the injury sustained by the plaintiff, thereby entitling the defendant to invoke against the town the provisions of C. S., 618, as amended by Public Laws 1929, chapter 68, now G.S.,
And, too, it is significant to note that the order of removal in Banksv. Joyner, supra, was in an action against an administrator when there was then in effect another section of the venue statute, C. S., 465, now G.S.,
For reasons stated, judgment below is
Reversed.