Shaw v. Stiles, 13 N.C. App. 173

13 N.C. App. 173 | N.C. Ct. App. | 1971

BRITT, Judge.

Absent a motion by plaintiff in this case to dismiss this appeal for that it is not authorized by G.S. 7A-27, (See also Rule 4 of Rules of Practice in the Court of Appeals of N. C.), we consider on its merits the question presented, namely, did the trial court err in denying the motion of defendants Jenkins and Mattocks to remove the action to Jones County for trial. We hold that the trial court did not err.

G.S. 1-82, applicable to this case, provides in pertinent part: “In all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement, or if none of the defendants reside in the State, then in the county in which the plaintiffs, or any of them, reside; . ” (Emphasis ours.) This statute relates to venue as opposed to jurisdiction. McGovern and Co. v. R. R., 180 N.C. 219, 104 S.E. 534 (1920).

G.S. 1-83 provides in pertinent part: “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 consent of parties, or by order of the court.” (Emphasis ours.)

G.S. 1A-1, Rule 12(b) provides, in pertinent part, that every defense, in law or fact, to a claim for relief in any pleading shall be asserted in the responsive pleading thereto if one is required, except that at the option of the pleader improper venue or division may be made by motion but such motion shall be made before pleading if a further pleading is permitted. Rule 12(h) (1) provides that a defense of improper venue is waived if not made by motion or in responsive pleading as provided in Rule 12.

We do not find it necessary to answer appellants’ contention that although plaintiff ancillary administrator is a resident of Onslow County he is not a real party in interest, therefore, not a plaintiff as envisioned by G.S. 1-82. Suffice to say, since defendants Canady and Anderson were residents of Onslow County at the time the action was commenced, and before the time for answering expired no motion was made by any defendant that the trial be conducted in another county, and no question of improper venue or division was asserted in any answer, appellants are not entitled as a matter of right to have the case removed to their home county. G.S. 1-82; G.S. 1-83; G.S. 1A-1, Rule 12.

At the time this action was filed, the new Rules of Civil Procedure were not in effect. However, the action was pending on 1 January 1970, the effective date of the rules, and at that time became subject to the rules. Ch. 803, 1969 Session Laws. It has been well settled in this State for many years that venue is not jurisdictional, but is only ground for removal to the proper county, if objection thereto is made in apt time and in the proper manner. Nello L. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E. 2d 54 (1952) ; Casstevens v. Membership Corp., 254 N.C, 746, 120 S.E. 2d 94 (1961). We find nothing in the new rules that negates this principle; on the contrary the principle appears to be fully supported by Rule 12.

We concede that in this case had any defendant made a motion to remove within the time provided in the statutes, the 'move would have been futile. Nevertheless, an interpretation by us of applicable statutes and rules as contended by appellants would amount to judicial amendment of statutes. This we refuse to do as we respect a rightful prerogative of the General Assembly. Appellants cite Powers v. C. & O. R. R. Co., 169 U.S. 93 (1898) in support of their contention. It would appear that the court in that case was dealing with jurisdiction, not venue.

For the reasons stated, the order appealed from is

Affirmed.

Judges Brock and Vaughn concur.