Mcfadden v. Maxwell

• Decision Date: 22 January 1930
• Docket Number: (No. 586.)
• Citation: 151 S.E. 250
• Court: North Carolina Supreme Court
• Parties: McFADDEN. v. MAXWELL, Commissioner of Revenue, et al.

151 S.E. 250

(198 N.C. 223)

McFADDEN.

v.MAXWELL, Commissioner of Revenue, et al.

(No. 586.)

Supreme Court of North Carolina.

Jan. 22, 1930.

Appeal from Superior Court, Buncombe County; Schenck, Judge.

Action by D. W. McFadden against A. J. Maxwell, Commissioner of Revenue, and others. From an order affirming an order of the clerk of superior court denying defendants' motion that the action be removed to the superior court of Wake county for trial, defendants appeal. Reversed.

This action was begun in the superior court of Buncombe county to recover the sum of $420, paid by the plaintiff, a resident of said county, to the defendant, the commissioner of revenue of North Carolina. The said sum of money was demanded of plaintiff by said commissioner of revenue as a license tax assessed against the plaintiff under the provisions of section 209(c) of chapter 80, Public Laws of N. C. 1927.

In his complaint, plaintiff alleges that said license tax was wrongfully and unlawfully assessed against him, and that plaintiff paid the same under protest, in writing, and immediately demanded the return of the sum of money so paid by the said commissioner of revenue. Upon the refusal of said demand, this action was begun in accordance with the provisions of section 464, chapter 80, Public Laws of N. C. 1927.

The action was heard upon defendants' appeal from the order of the clerk of the superior court of Buncombe county, denying defendants' motion made in apt time, that the action be removed from the superior court of Buncombe county to the superior court of Wake county, for trial, In accordance with the provisions of C. S. § 464.

From the order of Judge Schenck, affirming the order of the clerk, and denying their motion for the removal of the action for trial, defendants appealed to the Supreme Court.

Dennis G. Brummitt, Atty. Gen., and Walter D. Siler, Asst. Atty. Gen., for appellants.

Ward & Allen, of Asheville, for appellee.

CONNOR, J. The only question presented by this appeal is whether there was error in the refusal of defendants' motion for the removal of the action, for trial, from the superior court of Buncombe county, where the action was begun, to the superior court of Wake county, where defendants, public officers, who are sued by reason of their official acts, allege that the cause of action upon which plaintiff demands relief arose. If there was error in the order refusing the motion, the order must be reversed; otherwise it must be affirmed.

Ordinarily, and subject to statutory provisions not applicable to the instant case, an action begun and pending in the superior court of the county in which the plaintiff re-sides must be tried in said county. C. S. § 469. Where, however, the action is against a public officer, and the cause of action is founded upon his official acts, the action must be tried in the county where the cause of action, or some part thereof, arose, subject to the power of the court to change the place of trial, in cases as provided by law. C. S. § 464. If the action against a public officer is begun in the superior court of a county other than that in which the cause of action arose, it may nevertheless be tried in said county, if the defendant does not, in apt time, file a motion for its removal to the proper county. By failure to file such motion, he waives the right...