Tbe question for determination is whether, upon the facts as disclosed by the present record, the defendant was entitled, as a matter of law, tо have the action removed to Buncombe County for trial. The answer must be in the affirmative.
G.S. 1-83 reads as follows: “If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by сonsent of parties, or by order of the court.
“The court may change the place of trial in the following cases:
“1. When the county designated for that purpose is not the proper one.
“2. When the convenience of witnesses and the ends of justice would be promoted by the change.
“3. When the judge has, at any time, been interested as party or counsel.
“4. When motion is made by the plaintiff and the action is for divorce and the defendant has not been personally served with summons.”
Under our practice venue is not jurisdictional, but is only ground for removal to the prоper county, if objection thereto is made in apt time and in the proper manner. G.S. 1-83;
Wiggins v. Trust Co.,
McIntosh, in discussing removal of actions for wrong venue, in his Nоrth Carolina Practice and Procedure, section 295, at page 279, said: “If the demand for removal is properly made, and it appeаrs that the action has been brought in the wrong county, the court has no discretion as to removal. It is a right which the defendant may assert and which the сourt cannot deny, if properly asserted. The word ‘may’ is construed ‘must,’ and from a refusal of the right to remove the defendant may appeal,” citing
Jones v. Town of Statesville,
Venue not being jurisdictional may be waived by any party, including the government. 56 Am. Jur., Venue, section 38, page 42,
et seq.; Panhandle Eastern Pipe Line Co. v. Federal Power Commission,
In view of the fact that a defendant will have his rights determined in an action instituted in an improper county, unless he seasonably asserts his right for removal tо a proper one, we hold that where a plaintiff voluntarily institutes an action in an improper county and files his complaint and obtains sеrvice on the defendant, he thereby waives his right to have the action removed to the county of his residence. In our opinion this conclusiоn is supported by the provisions of G.S. 1-83 and our decisions, although the precise point seems not to have been expressly determined herеtofore on a factual situation identical with that presented on this appeal.
Cf. Pushman v. Dameron,
In
Pushman v. Dameron, supra,
the plaintiff instituted an action in Guilford County against E. P. Dameron, administrator of Barrur H. Serunian, deceased, to recover damages for personal injuries resulting from the reckless driving of an automobile by defendant’s intestate. The accident occurred near Fletcher in Henderson County and the defendant’s intestate was killed. After the action hаd been filed and the cause was at issue, the plaintiff made a motion to transfer the action to Buncombe County for trial on the ground that the сonvenience of witnesses and the ends of justice would be promoted thereby. The court found as a fact that the convenience оf witnesses and the ends of justice would be promoted by removal of the action to Buncombe County for trial but held it to be mandatory under the statute C.S. 465 (G.S. 1-78) that the cause be retained in Guilford County for trial. The ruling was reversed on appeal.
*745
Tbis Court held that while the action bad to be instituted against tbе administrator in Guilford County, it did not have to be tried there, citing
Latham v. Latham,
In the case of R. R. v. Thrower, supra, the plaintiff was a corporation with its principal office in New Hanover County, and the defendant was a citizen and resident of Mecklenburg County. The action was instituted in Cumberland County to recover from the defendant the amount of an unpaid check delivered by the defendant to the plaintiff. In apt time the defendant filed his motion for removal of the cаuse to Mecklenburg County for trial. Thereupon, the plaintiff filed a motion that the court retain the cause in Cumberland County for the convenienсe of witnesses as provided in C.S. 470 (now G.S. 1-83, subsection (2)). The court granted the plaintiff’s motion and upon appeal the ruling was reversed. This Court held that Mecklenburg County was the proper venue for the trial of the action. In speaking for the Court, Barnhill, J., said: “When the defendant duly and in proper time filed his motion in writing for the removal of this cause to Mecklenburg County it then became the duty of the court to pass upon and decide the question thus raisеd before proceeding further in the cause in any essential matter affecting the rights of the defendant. Pending a determination of this question the court was without authority to entertain the motion made by the plaintiff. On the admitted facts defendant’s motion should have been allowed and an ordеr removing the cause to Mecklenburg County should have been entered. By considering and allowing the plaintiff’s motion in its discretion the court below, in effect, by the exercise of discretion, denied the defendant a substantial right to which he is entitled as a matter of law.”
The General Assembly, by 1945 Session Lаws, Chapter 141, added section 4 to G.S. 1-83, as above set out. This section gives a plaintiff the right to make a motion for removal in a divorce action, when such motion is made before the defendant has been personally served with summons. By adding this section, we think the Legislature construed the existing statute as not giving a plaintiff the right to have an action voluntarily instituted by him, in an improper county, removed to one of proper venue.
The order directing the removal of this cause to Buncombe County, as a matter of right, will be upheld.
The plaintiff, if it so elects, will have the right to file a motion in Buncombe County for removal of the cause for the convenience of witnesses under subsection (2) of G.S. 1-83, which motion, if interposed, *746 should be disposed of in the discretion of the court. R. R. v. Thrower, supra. The plaintiff, however, has no right, under its motion interposed below, either as a matter of law or in the discretion of the court, to have this cause removed to Durham County.
The judgment of the court below is
Affirmed.