Blevens v. Kitchen Lumber Co. Inc

• Decision Date: 10 October 1934
• Docket Number: No. 161.,161.
• Citation: 176 S.E. 262,207 N.C. 144
• Court: North Carolina Supreme Court
• Parties: BLEVENS. v. KITCHEN LUMBER CO., Inc.

207 N.C. 144

176 S.E. 262

BLEVENS.

v.KITCHEN LUMBER CO., Inc.

No. 161.

Supreme Court of North Carolina.

Oct. 10, 1934.

Appeal from Superior Court, Yancey County; Finley, Judge.

Civil action by Mrs. Laura Blevens against the Kitchen Lumber Company, Incorporated. From an order denying a motion to remove the case to Graham county for trial, the defendant appeals.

Affirmed.

This was a civil action brought by the plaintiff in the superior court of Yancey county, wherein the defendant filed a petition and motion before the clerk demanding that the action be removed from Yancey county to Graham county for trial, under the provisions of C. S. § 463, subd. 1. The clerk denied the motion and retained the case, and the defendant excepted and appealed, and the judge at term time affirmed the order of the clerk; whereupon the defendant again excepted and appealed to the Supreme Court, assigning errors.

Watson & Fouts, of Burnsville, and Moody & Moody, of Murphy, for appellant.

Charles Hutchins and Ernest L. Briggs, both of Burnsville, for appellee.

SCHENCK, Justice.

The defendant contends that the action as alleged in the complaint is a local action and that Graham county, in which the land referred to in the complaint is situated, is the proper venue. The plaintiff contends that the action as alleged in the complaint is a transitory action, and that Yancey county, where it was instituted, is a proper venue. The defendant in its brief says, and correctly so, that "the form of action stated in thecomplaint determines this appeal"; and, since the "complaint determines this appeal, " we are precluded from considering the allegation in the petition for removal that "that portion of said paragraph (of the complaint) alleging title or an interest in said tract of land will be denied in the answer of this defendant which raises the question of title to the land or any interest therein claimed by the plaintiffs and it becomes, or will become, necessary to try the title to said tract of land."

The sole question before us is whether the action as alleged in the complaint is transitory or local. If it is local it should have been removed to Graham county. If it is transitory it should have been retained in Yancey county.

The complaint alleges that the plaintiff is the owner of an undivided one-sixth interest in a tract of land in Graham county and that the defendant, after obtaining certain interests in said tract of land, entered thereupon and cut and removed therefrom virgin timber, and wrongfully and willfully cut and removed her timber therefrom, "which interest of this plaintiff was reasonably worth the sum of $7,500.00"; and that at the time the defendant "entered in and upon and wrongfully trespassed upon this plaintiff's interest in said property and wrongfully cut, removed and converted the same to its own use, " it "knew that this plaintiff had an outstanding Interest in said lands and in the timber thereon, * * * and in direct violation of the law cut and removed the same from the premises."

It will be noted that the plaintiff nowhere seeks to recover real property or an estate or interest therein, or to recover for injuries to...