37 S.E.2d 177 | N.C. | 1946
Civil action instituted in Yancey County, where the plaintiff resides, to recover the sum of $2,366.00, the alleged balance due the plaintiff on a contract for the construction of a church building for the defendants, in Mitchell County, and for an order directing the sale of said church property to satisfy the above sum, which is secured by a laborers' and materialmen's lien duly filed in the office of the Clerk of the Superior Court of Mitchell County, 28 December, 1945.
In apt time the defendants made a motion before the Clerk of the Superior Court of Yancey County to remove the cause to Mitchell County, on the ground that the latter county was the proper venue. The motion was granted and the plaintiff appealed to his Honor, the judge holding the courts of the Eighteenth Judicial District, who held that Mitchell County was the proper venue for the trial of this action, and entered an order accordingly.
Plaintiff excepted and appealed to the Supreme Court.
The appellant insists he had the right to institute this action in Yancey County and to have the case tried there, notwithstanding the fact that the lien he seeks to foreclose was filed in Mitchell County, where the land lay. He is relying upon Sugg v. Pollard,
The appellant further contends, however, that his action is for a money judgment only and therefore is not analogous to an action for the foreclosure of a mortgage or an action to foreclose a lien. We cannot so hold in view of the allegations of the complaint. The balance claimed to be due is bottomed upon the alleged contract, but even so, the plaintiff is relying upon his lien for the payment thereof. He so pleads and in his prayer for relief he asks for the specific property upon which he holds his lien, to be sold to satisfy his judgment, costs, etc. Therefore, we think Mitchell County is the proper venue for the trial of this cause and that the defendants were entitled, as a matter of right, to have their motion for removal granted. Mortgage Co. v. Long,
The judgment of the court below is
Affirmed.