Davis v. Davis

• Decision Date: 18 February 1920
• Docket Number: 15.
• Parties: DAVIS v. DAVIS.
• Court: North Carolina Supreme Court

102 S.E. 270

179 N.C. 185

DAVIS v. DAVIS.

No. 15.

Supreme Court of North Carolina

February 18, 1920

Appeal from Superior Court, Beaufort County; Lyon, Judge.

Action by S.D. Davis against Ruth Davis Order setting aside a decree granting an absolute divorce to plaintiff, and plaintiff excepts and appeals. Remanded, with directions.

Generally an action brought in the wrong county may be removed instead of dismissed, and failure to make the motion for removal is a waiver of the objection to the county in which it is brought.

This is an appeal from an order setting aside a decree which granted an absolute divorce to the plaintiff.

Upon the hearing of the motion the following facts were found:

"(1) That on February 5, 1919, the plaintiff, through his attorney, P. H. Bell, filed with the clerk of this court an affidavit as the basis for an order of publication of summons, which affidavit is in the following form, to wit 'S. D. Davis, being first duly sworn, says that Ruth Davis is a necessary party defendant to the above-entitled action, and, further, that the said Ruth Davis is not a resident of the state of North Carolina, and prays that an order for publication of notice of said action be granted so that notice may be given as required by law.'

That the said affidavit was duly sworn to before a notary public on January 30, 1919.

(2) That contemporaneously with the filing of the said affidavit to wit, on February 5, 1919, the complaint setting up and stating a cause of action for divorce, with affidavit in due form accompanying same, was filed with the clerk of this court.

(3) That on the 5th day of February, 1919, the clerk of this court made the order of publication appearing in the record.

(4) That notice of said action, in the form appearing in the record, was published in the Washington Daily News, a daily paper published in Washington, Beaufort county, N. C., the first publication thereof being in the issue of February 6th and the last publication in the issue of March 6th, and meanwhile having appeared in the following issues: February 8th, 11th, 12th, 15th, 19th, 20th, March 1st, 3d, 4th, 5th and therefore that the said notice appeared at least once each week for four consecutive weeks, the last publication being more than 30 days before the first day of the April term, 1919, of the superior court of Beaufort county which first day was April 7, 1919.

(5) That at the time of bringing the suit the plaintiff had been a resident of the state of North Carolina for more than two years, and, while not a resident of the county of Beaufort, that in the selection of the said county as the venue of the action he was acting in good faith, without purpose to take any advantage of the defendant, and that such venue was selected by his attorney in good faith and to expedite the trial and determination of the case.

That at the time of bringing of the action and at all times material to the controversy the defendant was not a resident of this state, and has never been in this state, nor was she ever in the state until after the judgment was rendered in this action, but was in the state of Oklahoma.

(6) That the defendant did not appear in the action, nor was any motion made on her behalf for a change of venue.

(7) That the movant abandons the averment that the plaintiff had not been a resident of the state of North Carolina for two years prior to the commencement of the action, and the jury so found in its verdict.

(8) That the jury found, as appears in the record, that defendant, as alleged in the complaint, had committed adultery while the wife of the plaintiff; that the plaintiff is a man of good repute, a minister of the gospel, prominent among his race, and respected by both races, and that since said judgment was rendered he has remarried, and that the woman whom he married last is now with child; that he has the custody and support of the children begotten of the defendant by him."

It was also admitted that at the time the affidavit was filed with the clerk of the superior court of Beaufort county as the basis for the order of publication said clerk had no knowledge as to whether the defendant was in North Carolina, or otherwise, except as contained in the affidavit.

The motion to set aside the decree was on the ground:

(1) That as the plaintiff was a resident of Wilson county when the action was commenced the superior court of Beaufort county was without jurisdiction.

(2) That the affidavit on which the order of publication was based is fatally defective, for that it does not allege facts showing that the plaintiff has a cause of action.

(3) That said affidavit is also defective because it fails to allege that the defendant could not after due diligence be found in the state.

The motion was allowed, and the plaintiff excepted and appealed.

Ward & Grimes and Small, MacLean, Bragaw & Rodman, all of Washington, N. C., for appellant.

W. A. Lucas, of Wilson, and Wiley C. Rodman, of Washington, N. C., for appellee.

ALLEN J.

The first objection of the defendant to the validity and regularity of the decree of divorce is based on section 1559 of Revisal, which provides that, "In all proceedings for divorce, the summons shall be returnable to the court of the county in which the applicant resides," the defendant contending that this is jurisdictional.

It is evident that the General Assembly did not so intend because it placed the section under the title of venue and not of jurisdiction, and nothing appears to show the purpose to take an action for divorce out of the general principle, which prevails, that any action brought in the wrong county may be removed instead of dismissing it, and that a failure to make the motion for removal is a waiver of the objection to the county in which it is brought.

In section 419 of the Revisal it is declared that actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, and then follows the enumeration of certain causes of action, and the same language is used in section 420 in regard to certain actions.

In the following sections, 421, 422, and 423, provision is made for the trial of actions upon official bonds, domestic corporations, and foreign corporations, and then follows section 424, providing for the place of trial "in all other...