Atlantic Coast Line R. Co. v. Spencer

• Decision Date: 23 September 1914
• Docket Number: 29.
• Citation: 82 S.E. 851,166 N.C. 522
• Parties: ATLANTIC COAST LINE R. CO. ET AL. v. SPENCER ET AL.
• Court: North Carolina Supreme Court

82 S.E. 851

166 N.C. 522

ATLANTIC COAST LINE R. CO. ET AL. v. SPENCER ET AL.

No. 29.

Supreme Court of North Carolina

September 23, 1914

Appeal from Superior Court, Gates County; Ferguson, Judge.

Action by the Atlantic Coast Line Railroad Company and another against F. F. Spencer and another. From an order removing the action on motion for a change of venue, plaintiffs appeal. Reversed.

The question whether an individual is a resident of the state is one of fact.

J Kenyon Wilson, of Elizabeth City, for appellants.

Ward & Thompson, of Elizabeth City, for appellees.

CLARK C.J.

The defendants moved to remove this action to Hyde county, for improper venue, upon the ground that the Atlantic Coast Line Railroad Company was a foreign corporation, and that the defendant Spencer is a resident of Hyde county, and the defendant Transportation Company is a domestic corporation having its principal place of business in said county. The cause was removed, not as a matter of discretion, or because of the convenience of witnesses, but on the ground that it was improperly brought in the county of Gates, the Atlantic Coast Line Railroad Company being held a foreign corporation.

The motion was erroneously allowed. Whether an individual is a resident of this state or not depends upon evidence, and is a question of fact, to be passed upon by the federal court; but whether a corporation is a North Carolina corporation or not is a matter of law, depending upon its charter. The question of law whether the Atlantic Coast Line Railroad Company is a North Carolina corporation was decided in this court in a very able and conclusive opinion by Connor, J., now the accomplished Judge of the United States District Court for the Eastern District of North Carolina, in an exhaustive opinion in Staton v. Railroad, 144 N.C. 145-154, 56 S.E. 794, to which we feel unable to add anything. That opinion is based upon federal authorities therein cited. It has been cited as authority in Hough v. Railroad, 144 N.C. 701, 57 S.E. 469, and Hurst v. Railroad, 162 N.C. 371, 372, 78 S.E. 434, and has been reaffirmed at this term in Cox v. Railroad, 82 S.E. 979.

If, as suggested, the principal place of business of the Atlantic Coast Line Railroad Company is in New Hanover, the action should have been brought in that county. Revisal, § 422. But Revisal, § 425, provides that if an action is not brought in "the proper county," it "may,...