Zucker v. . Oettinger

102 S.E. 413 | N.C. | 1920

This is an action brought against the defendants to recover the balance due on account of goods sold and delivered.

The plaintiffs are residents of the city of New York, and the defendants are residents of the county of Wilson. Summons was issued by the clerk of the Superior Court of Pitt County, under chapter 304, Acts of 1919.

The plaintiff filed his verified complaint, and the defendant, before filing answer and before return time, appeared before the clerk and demanded removal of the same to the county of the defendants.

Thereupon the clerk made an order transferring the same to the Superior Court of Wilson County.

Whereupon the plaintiffs excepted, and clerk transferred the cause to the Superior Court docket, and at term time his Honor affirmed and approved the order of the clerk removing the same.

The plaintiff, being a nonresident, should have commenced the action in the county of Wilson, where the defendant resided. In such cases the nonresident plaintiff is not permitted to select any county in the State within which to bring his action. If he brings it in the wrong county it is subject to the power of court to remove the same to the proper county upon motion made in apt time. Clark's Code, sec. 192; Stevens Lumber Co. v.Arnold, at this term. Prior to the Act of 1919, the motion, as a matter of course, was made in the Superior Court, and could not be made before the clerk. Since that statute makes the summons and the pleadings to be filed before the clerk, it necessarily follows that the motion for a change of venue should be lodged with the clerk, because such motion to remove an action to another county cannot be made after answer filed. Board ofEducation v. State Board, 106 N.C. 83. The party desiring to move the cause can preserve his rights by filing his motion with the clerk before filing his answer. Such party can then file his answer. The clerk can transmit all the papers, including the motion, to the Superior Court. Whereupon the judge can pass upon the motion for a change of venue.

In this case the clerk granted the order of removal, and the plaintiff appealed to the judge, who heard the same at the January regular term of the Superior Court of the county of Pitt. His Honor, Judge Connor, ordered the cause to be removed. It is immaterial how the cause got before the judge in term time, whether by appeal or by a transfer. It is sufficient that it was rightfully there, and the judge had jurisdiction to pass upon the motion.

Affirmed.