Causey v. Morris

• Decision Date: 02 May 1928
• Docket Number: 389.
• Citation: 142 S.E. 783,195 N.C. 532
• Parties: CAUSEY et al. v. MORRIS et al.
• Court: North Carolina Supreme Court

142 S.E. 783

195 N.C. 532

CAUSEY et al. v. MORRIS et al.

No. 389.

Supreme Court of North Carolina

May 2, 1928

Appeal from Superior Court, Guilford County; Stack, Judge.

Action by T. K. Causey and others against A. L. Morris and others. Defendants filed a motion for removal of the action to the county of their residence. From an order allowing the motion plaintiffs appeal. Reversed.

Motion for the removal of the above-entitled action from the superior court of Guilford county to the superior court of Rutherford county, for trial, upon the ground that the action is for the determination of a right to or an interest in land situate in Rutherford county, and also upon the ground that the convenience of witnesses and the ends of justice will be promoted by such removal. From an order allowing the motion upon the first ground only, and thereupon removing the action in accordance therewith, as a matter of right, plaintiffs appealed to the Supreme Court.

Defendants' answer which they proposed to file cannot be considered on motion for removal of action.

Frazier & Frazier and Edward C. Jerome, all of Greensboro, for appellants.

Edwards & Dunagan and Quinn, Hamrick & Harris, all of Rutherfordton for appellees.

CONNOR J.

Plaintiffs and defendants are all residents of this state. Plaintiffs reside in Guilford county; defendants reside in Rutherford county. This action was commenced in the superior court of Guilford county, by summons issued on October 20, 1927. The summons was duly served on defendants on October 27, 1927.

After the complaint was filed and before the time for answering had expired, defendants demanded in writing, by motion before the clerk, that the action be removed from the superior court of Guilford county to the superior court of Rutherford county, for trial, for that Guilford county is not the proper county for the trial of the action. C. S. § 470. The ground for this motion was that the action is for the determination of a right to or an interest in land situate in Rutherford county. C. S. § 463, subsec. 1. Defendants also prayed that the action be removed by the clerk, in his discretion, for that the convenience of witnesses and the ends of justice would be promoted by the removal from Guilford county to Rutherford County. C. S. § 470, subsec. 2. From the order of the clerk, allowing the motion, both as a matter of right and in his discretion, plaintiffs appealed to the judge presiding at the next term of the superior court of Guilford county. C. S. vol. 3, § 913(a). The motion was heard and passed upon de novo, as prescribed by statute, by the judge who allowed the motion as a matter of right, upon the ground that the action is for the determination of a right to or an interest in land situate in Rutherford county, and is in effect for the foreclosure of a mortgage upon said land, or for the redemption of said land from a mortgage. The judge did not pass upon, or allow, the motion for removal, in his discretion, upon the ground that the convenience of witnesses and the ends of justice would be promoted by the removal as prayed for by defendants. Defendants' motion was allowed, and the action removed, by the judge, only as a matter of right. Plaintiffs excepted to the order of the judge, and appealed therefrom to this court.

The question as to whether a motion for the removal of an action from the superior court of the county in which it was commenced, and in which it is pending, to the superior court of another county, for trial, upon the ground that the convenience of witnesses and the ends of justice will be promoted thereby, may be made before the clerk in the first instance, and then heard by the judge de novo upon an appeal from the order of the clerk allowing or disallowing the motion, is not presented on this record. A motion for removal on this ground, as authorized by statute (C. S. § 470, subsec. 2), is addressed to the discretion of the court; its order allowing or disallowing the motion is not reviewable on appeal to this court. Craven v. Munger, 170 N.C. 424, 87 S.E. 216; Oettinger v. Livestock Co., 170 N.C. 152, 86 S.E. 957. The statute authorizing motions for removal to be made before the clerk refers only to motions to remove as a matter of right. C. S. vol. 3, § 913(a). Motions for removal, which may be allowed or disallowed in the discretion of the court, should be made before the judge at any time during a term of the court. Howard v. Hinson, 191 N.C. 366, 131 S.E. 748. The clerk of the superior court of Guilford county was without power, under the statute, to remove this action, upon the ground that the convenience of witnesses and the ends of justice would be promoted by the removal. The motion for removal upon this ground can be made only before the judge during a term of the superior court.

If the venue for the trial of this action is to be determined solely by the residence of the parties, defendants are not entitled to an order of removal, as a matter of right, for where both plaintiffs and defendants are residents of this state, the plaintiffs are entitled to choose the county of their residence as the forum for the trial of the action. C. S. § 469. Craven v. Munger, 170 N.C. 424, 87 S.E. 216. However, if the action, commenced in Guilford county, and pending therein, is for the determination of a right to or an interest in land situate in Rutherfod county, or for the foreclosure of a mortgage on said land, defendants, having moved therefor, in writing, before the clerk, and before the time for answering the complaint had expired, are entitled to the order of removal, as a matter of right, for by statute when an action is for the determination of a right to or interest in land, or is for the foreclosure of a mortgage on land, it must be tried in the county in which the land is situate, subject to the power of the court to change the place of trial, in its discretion, as authorized by statute, provided defendant has not waived his right to a removal by failure to demand the same, in...