Carolina Mortg. Co. v. Long
| Decision Date | 10 January 1934 |
| Docket Number | 386. |
| Citation | 172 S.E. 209,205 N.C. 533 |
| Parties | CAROLINA MORTGAGE CO. v. LONG et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Frizzelle, Judge.
Action by the Carolina Mortgage Company against Dr. V. M. Long and wife. From an order overruling their motion for a change of venue, the defendants appeal.
Reversed.
In ascertaining proper venue of action, nature and purpose thereof must be determined from complaint, and not by prayer for relief.
This action was heard on the motion of the defendants, made in apt time, and as a matter of right, that the action be removed from the superior court of Wake county, where it was begun and where it is now pending, to the superior court of Forsyth county, for trial.
The defendants contended at the hearing of their motion that it appears from the allegations of the complaint that this is an action for the foreclosure of a mortgage on land in Forsyth county, and that for this reason they are entitled, as a matter of right, to its removal to said county, for trial.
The plaintiff contended, on the other hand, that it appears from its prayer for relief that the action is to recover of the defendants the sum of $2,350.71, with interest from August 21, 1933, and not for the foreclosure of the mortgage described in the complaint, and that for this reason the action should be tried in Wake county, where the plaintiff, a corporation organized under the laws of this state, has its principal place of business.
The motion was denied, and the defendants appealed to the Supreme Court.
Elledge & Wells, of Winston-Salem, for appellants.
John N Duncan and W. G. Mordecai, both of Raleigh, for appellee.
The plaintiff is a corporation, organized under the laws of this state, with its principal place of business in the city of Raleigh, Wake county. The defendants are citizens of this state, and are residents of Forsyth county. The action was begun and is now pending in the superior court of Wake county, which is the proper venue for its trial (C. S. § 469; Smith-Douglas Co. v. Honeycutt, 204 N.C. 219, 167 S.E. 810), unless, as contended by the defendants, the action is for the foreclosure of a mortgage on land in Forsyth county. In that case, the proper venue for its trial is Forsyth county (C. S. § 463(3), Connor v. Dillard, 129 N.C. 50, 39 S.E. 641), and there was error in the denial of defendants' motion for its removal, as a matter of right, to said county, for trial. The motion was duly made before the time for the filing of an answer to the complaint had expired, and was therefore in apt time. C. S. § 470. The motion was not addressed to the discretion of the court, but was denied as a matter of law. The only question, therefore presented by this appeal is whether there was error in such denial, and the answer to this question depends upon the nature and purpose of the action.
The nature and purpose of an action is to be determined by the allegations of the complaint, and not by the prayer for relief on the facts alleged in the complaint. Jones v. R R., 193 N.C. 590, 137 S.E. 706. In that case it is said that his prayer is not the measure of the relief to which the plaintiff is entitled upon the allegations of his complaint. The prayer does not narrow or enlarge the relief to which the plaintiff is entitled. He may recover such relief as he is entitled to upon the facts alleged in his complaint and established by his proof. Therefore the nature of his action must be determined by the allegations of his complaint, and not by the specific relief for which he prays.
Shrago v. Gulley, 174 N.C. 135, 93 S.E. 458; Warren v. Herrington, 171 N.C. 165, 88 S.E. 139; Baber v. Hanie, 163 N.C. 588, 80 S.E. 57, 12 A. L. R. 1518; Councill v. Bailey, 154 N.C. 54, 69 S.E. 760, 761. In the last-cited case, which was an action to recover the purchase money for a tract...
To continue reading
Request your trial