Biggs v. Bowen

• Decision Date: 03 November 1915
• Docket Number: (No. 261.)
• Citation: 170 N.C. 34,86 S.E. 692
• Court: North Carolina Supreme Court
• Parties: BIGGS. v. BOWEN et al.

86 S.E. 692

170 N.C. 34

BIGGS.

v.BOWEN et al.

(No. 261.)

Supreme Court of North Carolina.

Nov. 3, 1915.

Appeal from Superior Court, Wake County; Allen, Judge.

Action by J. C. Biggs, receiver, against W. T. Bowen and others. From a judgment denying a motion to remove the cause to another county, defendants appeal. Affirmed.

Shaw & MacLean, of Fayetteville, E. F. Young, of Dunn, Chas. Ross, of Lillington, and Sinclair, Dye & Ray, of Fayetteville, for appellants.

R. W. Winston, of Raleigh, for appellee.

BROWN, J. At August term, 1913, of Bladen superior court, the plaintiff was appointed receiver of the Newton-McArthur Lumber Company, which is a North Carolina corporation, with its principal place of business and all of its property in Bladen county. Plaintiff was appointed receiver in an action entitled "Harnett Lumber Co. V. Newton-McArthur Lumber Co. and Others, " pending in Bladen. At October term, 1913, of Bladen superior court, by consent, said action of Harnett Lumber Co. v. Newton-McArthur Lumber Co. was removed to the superior court of Cumberland county. On December 29, 1913, the plaintiff entered into a contract with the defendant Bowen. The other defendants in this action executed Bowen's bond, in the sum of $10,000, for the faithful performance of said contract This contract was executed in Wake county by the plaintiff, and in Cumberland county by the defendants, except Smith, who executed it in Harnett.

The plaintiff, at the time of his appointment as receiver, and of the making of the contract with defendant Bowen, and of the institution of this action, was a resident of Wake county. The defendants Bowen, McGougan, and Honeycutt were at said times residents of Cumberland county. Defendant Smith was a resident of Harnett county, and has since removed to Hoke county, and the defendant Ellington is now a resident of Johnston county. Bowen failed to perform said contract, and at the September term, 1914, of Cumberland superior court, after due notice to all the defendants, the court found that Bowen had failed to perform said contract, and directed plaintiff to take possession of the property which had been turned over to Bowen under the contract, and authorized and empowered the plaintiff to bring an independent action, if so advised, to recover of Bowen and his bondsmen damages for breach of said contract. This action was accordingly brought to December term, 1914, of Wake superior court to recover damages for breach of said contract.

The venue of this action is governed by Revisal, § 424, wherein it is enacted that:

"In all other cases the action shall be tried in the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action."

It is admitted that the plaintiff resided in Wake at the commencement of the action; but defendants contend that because plaintiff was appointed receiver in Bladen, and afterwards the action in which he was...