Ellis v. Ellis

• Decision Date: 12 November 1930
• Docket Number: 376.
• Citation: 155 S.E. 924,199 N.C. 708
• Parties: W. B. ELLIS v. W. B. ELLIS, Jr.
• Court: North Carolina Supreme Court

155 S.E. 924

199 N.C. 708

W. B. ELLIS v. W. B. ELLIS, Jr.

No. 376.

Supreme Court of North Carolina

November 12, 1930

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

Civil action to set aside a consent judgment --the same case that was here at the last term. 198 N.C. 767, 153 S.E. 449.

The present appeal is from the court's refusal to transfer the cause to Davie county for trial, "in so far as it involves the matter of the sanity of the plaintiff."

The record discloses that the motion for change of venue, on the issue of plaintiff's alleged insanity, was originally made and denied in the superior court of Forsyth County June 1, 1928. It was renewed at the December term, 1928, before MacRae, special judge, who first entered an order allowing the motion, but struck it out later in the term, reciting that the order of partial removal "was improvidently issued." The plaintiff again renewed his motion at the September term, 1930, before Stack, J., who denied it on two grounds: First, because on a preceding day of the term, "upon the request of plaintiff and with the consent of counsel for the defendants," the case had been continued for the term; and, second, because the same motion "had been heard and refused by a former superior court."

Plaintiff appeals, assigning error.

Where answer giving rise to motion for change of venue was not in record, appeal from denial of motion would be dismissed.

W. B. Ellis, for appellant.

Manly, Hendren & Womble, of Winston-Salem, for appellee.

STACY, C.J.

The answer of the defendant, which gave rise to the motion for change of venue, is not in the record, and no brief has been filed by the plaintiff. Besides, the appeal is without merit. It will be dismissed. Waters v. Waters, 199 N.C. 667, 155 S.E. 564.

Appeal dismissed.