161 N.C. 603 | N.C. | 1913
after stating the case: That an appeal lies from an order denying a motion for the removal of a case to the proper county for trial has been thoroughly settled by repeated decisions of this Court. Manufacturing Co. v. Brower, 105 N. C., 440; Connor v. Dillard, 129 N. C., 50; Brown v. Cogdell, 136 N. C., 32; Perry v. R. R., 153 N. C., 117. It is provided by Revisal, sec. 419, that actions for the recovery of real property, or of an estate or interest therein, or for the determination, in any form, of such right or interest and for injuries to real property, must be tried in the county where the subject of the action, or some part thereof, is situated, “subject to the power of the court to change the place of trial in the cases provided by law.” It is difficult to determine the exact nature of plaintiff's intended cause of action by the allegations of its complaint. The best we can make of it is, that the whole gravamen of its action is that the defendant unlawfully entered upon the land for the purpose of cutting down and removing the trees thereon, which were afterwards done. The allegations of the pleading are so blended as to render it impossible to separate any one or more of them from the others, and therefrom to frame a cause of action for a simple conversion of the
We may add tbat relief is now administered upon tbe allegations fairly, reasonably, and even liberally construed in aid of tbe pleader, without regard to the form of tbe prayer, or even if there is no prayer corresponding with tbe allegations, or one that misconceives tbe remedy. Voorhees v. Porter, 134 N. C., 591. But while technical accuracy is not demanded, we have not abolished all tbe rules of pleading, for tbe Code requires clearness and conciseness in the allegations, so as to evolve tbe real issue. If a plaintiff sues for one thing, we cannot give him another and different- thing. Blackmore v. Winders, 144 N. C., 215. If be sues for a continuous injury to bis land, we should not give him a judgment for anything not embraced by bis allegations. If bis pleading is - ambiguous, it may be amended-so as to make it certain. Revisal, sec. 496.
Testing tbe complaint in this case by these principles, we think plaintiff intended to sue for a trespass on its land in Tyrrell County, and tbe allegation of á conversion, as was said in Ellenwood v. Chair Co., supra, and Telegraph Co. v. Middleton, supra,, was inserted in aggravation of damages. Sure it is tbat plaintiff does sue, at least in part, for a pure trespass and injury to tbe freehold, in so many words, and actions
Tbe defendant is a foreign corporation,, and so is tbe plaintiff, both having their places of business in their domicile of origin, tbe State of Virginia, as tbe complaint alleges. It does not appear in tbe case tbat defendant, being a foreign corporation, “usually did business” in Wake County, or tbat it bad'any property therein, or tbat tbe plaintiff resides in said county. Tbe implication is tbat none of these facts existed, and if so, tbe Revisal, sec. 423, may require tbat tbe action should be tried in Tyrrell County, where tbe cause of action arose. As is said in tbe cases above cited, plaintiff must elect whether to sue in tort, for tbe trespass, or for tbe conversion, or, if tbe trees have been sold, in assumpsit for money bad and received to its use, where tbe question of venue is involved. Tbe plaintiff should be permitted to amend its complaint, if in its judgment an amendment will avail anything in view of tbe provisions of Revisal, sec. 423, and tbe defendant should have tbe like privilege of amending tbe affidavit, upon wbicb its motion for removal is based, if so advised to do, so tbat tbe facts, under Revisal, sec. 423, may appear more clearly and not merely by inference. We do not intend to say tbat causes of action in tort and in contract may not be joined, for they may be under tbe provisions of Revisal, see. 469, but under tbat section and sitbsection they must belong to one of tbe classes enumerated in section 469, must affect all parties, must be separately stated, “and must not require different places of trial.” Plaintiff cannot deprive defendant of tbe right to have a local cause of action tried in tbe proper county, or change
There is no sufficient allegation of a breach of tbe covenant of warranty, as it does not appear that there has been an ouster or eviction under a superior title. Britton v. Ruffin, 123 N. C., 67; Wiggins v. Pender, 132 N. C., 636; Griffin v. Thomas, 128 N. C., 310.
Tbe order is set aside and tbe case remanded for tbe purposes aforesaid, and tbe case will further proceed in tbe court below in accordance with law.
Error.