Graham v. The Charlotte & S. C. Rail Rd. Co.

• Decision Date: 30 June 1870
• Citation: 64 N.C. 631
• Court: North Carolina Supreme Court
• Parties: WILLIAM A. GRAHAM v. THE CHARLOTTE & S. C. RAIL ROAD COMPANY.

64 N.C. 631

WILLIAM A. GRAHAM

v.THE CHARLOTTE & S. C. RAIL ROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1870.

The venue in an action against a Railroad Company, can be laid only in some county wherein the track of its road, or some part thereof, is situated; actions brought otherwise are to be dismissed.

CIVIL ACTION upon Railroad Bonds, tried before Tourgee, J., at Spring Term 1870, of ORANGE Court.

The defendant set forth, that no part of the track of said road is situated in the county of Orange, and that the only county in the State, in which such road is situated, is Mecklenburg,--and demanded that trial should be removed to the latter county, according to C. C. P., s. 69.

The Court, after finding the facts to be as stated by the defendant, was of opinion that in cases where Railroad Companies are defendants, upon comparing the act of 1868-'9, c. 257, with that of 1868-'9, c. 277, actions may be brought in the Court of the county of either party; and thereupon, refused to make the order.

The defendant appealed.

Phillips & Merrimon, for the appellant .

Battle & Sons, contra .

PEARSON, C. J.

The Code of Civil Procedure, by Title VI, fixes “the place of trial.” Title VII, relates to the summons: It shall be issued by the Clerk of any Superior Court; run in the name of the State; be directed to the Sheriff of the county where the defendant resides or may be found; shall summon the defendant to appear at the office of the Clerk of the Superior Court for some certain county; the officer, to whom it is addressed, shall note on it the day of its delivery to him, and return it by mail, or otherwise, to the Clerk of the proper county--and many other details. But, strange to say, the provision as to the county to which the summons shall be returnable, is not set out, except at the end of paragraph 2, sec. 74, by way of inference from the provision: “The Clerk, before whom the defendant shall be summoned to appear, shall be the Clerk of the county in which it is provided in Title VI, that the action shall be tried.” So “the county in which the action shall be tried,” is the prominent idea. If the county designated in the summons as “the place of trial” be not the proper county, the action may be tried there, unless the defendant shall demand in writing, that the trial be had in the proper county, and the plan of trial be changed: Sec. 69. The relevancy of this remark will appear below.

“The summons shall be returnable to the regular term of the Superior Court of the county where the plaintiffs, or one of them, or the defendants, reside:” Acts 1868-'9, ch. 81, altering the Code of Civil Procedure, in regard to the return of the summons, and making it returnable to the county where the plaintiff or the defendant resides, at the election of the plaintiff. This is done in language, such as our Statutes had been accustomed to use.

“The ‘venire in actions' against Railroad corporations, shall be laid in some county wherein the track of said company is situated:” Acts 1868-'69, ch. 257. We take it, that “‘venire” is a mis-print for “venue,” or ‘the place of trial,” going back to the prominent idea of the Code of Civil Procedure. Originally in England writs were returnable to the Courts at Westminster, and every fact alleged in pleading, was laid...