Jones v. Town of Statesville

• Decision Date: 09 May 1887
• Citation: 2 S.E. 346,97 N.C. 86
• Parties: JONES v. TOWN OF STATESVILLE.
• Court: North Carolina Supreme Court

2 S.E. 346

97 N.C. 86

JONES v. TOWN OF STATESVILLE.

Supreme Court of North Carolina

May 9, 1887

Appeal from superior court, Catawba county.

C. H Armfield, for defendant.

No counsel for plaintiff.

MERRIMON J.

The plaintiff brought this action in the superior court of the county of Catawba to recover damages alleged to have been occasioned by injuries sustained through the negligence of defendant's officers and agents in failing to provide lights along its streets to enable persons passing along and over them in the night-time to see the pit into which the plaintiff fell, etc. The defendant is a municipal corporation, the county town of the county of Iredell. At the appearance term, before the time to answer had expired the defendant demanded in writing that the trial in the action be had in the county of Iredell, and that the court make a proper order to that end. This the court declined to do, whereupon the defendant, having excepted, appealed from the order in that respect to this court.

The statute (Code, § 191, par. 2) provides that actions must be tried in the county where the cause of action, or some part thereof, arose, subject to the power of the court to remove the same for trial for cause as prescribed by law, if the same be "against a public officer, or person specially appointed to execute his duties, for an act done by him by virtue of his office, or against a person who, by his command, or in his aid, shall do anything touching the duties of such officer." And it further provides (Code, § 195 par. 1) that "the court may change the place of trial in the following cases: (1) When the county designated for that purpose is not the proper county."

If the defendant demands in writing that the action of the class designated in the statutory provision first above recited be sent to the county where the cause of action arose, this must be done, because it is so provided, except as modified by the statute, (Code, § 191,) and hence the words "may change," in the statutory provision last above recited must be interpreted as implying that the court "must" or "shall" change the place of trial, etc. Cloman v. Staton, 78 N.C. 235. The defendant is a municipal corporation public in its nature. It is an artificial person created and recognized by the law, invested with important corporate powers, public, and in a sense official, in their nature, and charged with public duties which it...