Kellis.,v,welch Et Al., 444.
| Decision Date | 27 May 1931 |
| Docket Number | No. 444.,444. |
| Court | North Carolina Supreme Court |
| Parties | KELLIS. v WELCH et al. |
Venue could be so maintained since all the allegations of plaintiff's complaint related primarily to one transaction, the wrongful sale of plaintiff's property, and the evidence as to execution was relevant against all defendants, and since to allow a removal of the action against the clerk to the county where he was a public officer would have made possible conflicting verdicts and judgments; whereas the liability of defendants might be dependent, at least in part, on the validity or invalidity of the execution.
Appeal from Superior Court, Richmond County; Schenck, Judge.
Action by J. C. Kellis against Ernest Welch and others, including Edgar Haywood, Clerk of the Superior Court of Montgomery County. From an order allowing removal of the cause against defendant Haywood to Montgomery County, plaintiff appeals.
Reversed.
The plaintiff, a resident of Richmond county, brought suit against the defendants to recover damages for the alleged wrongful seizure and conversion of his automobile. In his complaint he alleges that on February 21, 1930, he bought the car from Lewis Motor Sales, Inc., of Montgomery county, and held possession of it as owner until October 6, 1930;. that on October 2, 1930, the defendant Haywood, in the capacity of clerk, issued from the superior court of Montgomery county a paper purporting to be an execution in an action entitled J. H. Hilyard v. Troy Motors, Inc., and the Commercial Credit Company, and caused it to be delivered to the sheriff of Richmond County; and that, by virtue of this execution, the defendant Braswell, as sheriff of Richmond county, seized the plaintiff's car and delivered it to the defendant Welch, who removed it to Guilford county.
The plaintiff alleges, in addition, that the action of the clerk in issuing the execution, of the sheriff in seizing the car, and of Welch in carrying it to Guilford county, was unlawful, and that he is entitled to the market value of the converted property.
The defendants filed answers, and in apt time the defendant Haywood made a motion for removal of the cause against himself to Montgomery county. The motion was allowed, and the cause, so far as it relates to the defendant Haywood, as clerk, was removed; the court finding the following facts:
(1) That Edgar Haywood is the clerk of the superior court of Montgomery county, and as such he issued the execution to the sheriff of Richmond county, under and by virtue of which the sheriff of Richmond county seized the automobile of the plaintiff.
(2) That the sheriff of Richmond county, acting under and by virtue of said purported execution, seized the plaintiff's automobile in Richmond county.
(3) That the plaintiff is a citizen and resident of Richmond county, and the execution was served on him in Richmond county.
The plaintiff excepted to the order of removal, and appealed.
J. C. Sedberry, of Rockingham, for appellant.
R. T. Poole, of Troy, for appellee Haywood.
The appeal raises a question, not of jurisdiction, but of venue—the county in which the facts relied on are alleged to have occurred, or in which the cause of action arose.
The place of trial is regulated by statute. C. S. § 463 et seq. Subject to statutory exceptions, an action may be tried in the county in which the plaintiff or the defendant resides at the time the action is commenced (C. S. § 469; MeFadden v. Maxwell, 198 N. C. 223, 151 S. E. 250); but an action against a public officer for an act done by him by virtue of his office must be tried in the county in which the cause or some part of it arose, subject to the power of the court to change the place of trial (C. S. § 464).
The defendant Braswell is a public officer of Richmond county, and the defendant Haywood is a public officer of Montgomery county. Obviously, therefore, we cannot literally apply the provisions of section 464, unless the alleged causes of action are separable in the sense of being so mutually independent as to authorize their separation and the removal of one cause to the county of Montgomery.
We recognize the principle that a plaintiff cannot change the venue of an action to the prejudice of the defendant and against his will by uniting two causes having different venues. Richmond Cedar Works v. Lumber Co., 161 N. C. 603, 613, 77 S. E. 770. But the complaint does not purport to state separate and independent causes of action against all the defendants, but a series of...
To continue reading
Request your trial