Miller v. Miller

• Decision Date: 24 January 1934
• Docket Number: 515.
• Citation: 172 S.E. 493,205 N.C. 753
• Parties: MILLER v. MILLER.
• Court: North Carolina Supreme Court

172 S.E. 493

205 N.C. 753

MILLER v. MILLER.

No. 515.

Supreme Court of North Carolina

January 24, 1934

Appeal from Superior Court, Guilford County; Sink, Judge.

Suit by Semenar Miller against W. S. Miller. From a judgment of the superior court affirming a judgment of the municipal court denying defendant's motion for removal, defendant appeals.

Affirmed.

The plaintiff brought suit in the municipal court of the city of High Point in Guilford county under C. S. Supp. 1924, § 1667 for alimony without divorce. The defendant moved for removal of the cause to Vance county for the alleged reason that both parties reside there. Evidence was offered by each party, and the clerk of the municipal court denied the motion. On appeal, the judge of the municipal court found as a fact that the plaintiff is a resident of High Point in Guilford county and denied the motion for removal. An appeal was then taken to the superior court, and Judge Sink affirmed the judgment. Whether his ruling is correct is the only question in the record. The defendant excepted and appealed.

Garland B. Daniel, of High Point, for appellant.

Walser & Casey, of High Point, for appellee.

ADAMS Justice.

It is alleged in the complaint that the defendant forced the plaintiff to leave his home at night and that she was compelled to take refuge in the home of a neighbor. Under these circumstances she could acquire a separate domicile. Rector v. Rector, 186 N.C. 618, 120 S.E. 195, 196; State v. Beam, 181 N.C. 597, 107 S.E. 429.

The venue of an action is a matter of statutory regulation. C. S § 463 et seq. Among these statutes section 469 is the only one which has direct bearing on the motion. It provides that "in all other cases" the action must be tried in the county in which the plaintiffs or the defendants, or any of them reside; and in section 1657 it said that in all actions for divorce the summons shall be returnable to the court of the county in which either the plaintiff or the defendant resides. In a proceeding for alimony without divorce (C. S. Supp. 1924, § 1667), "the wife may institute an action in the superior court of the county in which the cause of action arose"; but in Rector v. Rector, supra, the court held that the word "may" is permissive and not mandatory. Sustaining an action brought by the wife in a county other than that of the husband's residence, the court said: "The Legislature cannot reasonably be supposed to intend that a wife who is forced to go elsewhere than her husband's domicile to obtain food and shelter must bring an action in the county where her husband resides and which she was forced to leave and which he could change at will. She had a right, even under the agreement, to live where she desired. The defendant was to furnish subsistence and support to his wife wherever she lived, which in this case was Buncombe county. Her means are limited, and the cause of action actually arose in Buncombe, for it is the duty of a debtor to make payment at the home of the creditor, and on failure to do so the cause of action arose there."

Judgment affirmed.

STACY, Chief Justice, concurs on the ground that the municipal court of the city of High Point, unless it be a court of general jurisdiction, has no authority to remove a cause to the superior court of any county other than Guilford. Chapter 699, Public-Local Laws, 1927; 27 R. C. L., 779; Lewellyn v. Lewellyn, 203 N.C. 575, 166 S.E. 737.

Speaking to the right of a municipal court to grant a change of venue in the absence of statutory authority, it was said in Francken v. State, 190 Wis. 424, 209 N.W. 766, 767: "Proceedings for change of venue are statutory in their origin, and, where no statutory provision exists authorizing a change, the right thereto is nonexistent."

To like effect is the language of the court in Re McFarland, 223 Mo.App. 826, 12 S.W.2d 523, 526: "The question is whether a change of venue may be taken from the juvenile court, which is a division of the circuit court, in a proceeding for the adoption of a minor...