Riley v. Pelletier

• Decision Date: 08 March 1904
• Citation: 46 S.E. 734,134 N.C. 316
• Parties: RILEY et al. v. PELLETIER.
• Court: North Carolina Supreme Court

46 S.E. 734

134 N.C. 316

RILEY et al.

v.PELLETIER.

Supreme Court of North Carolina.

March 8, 1904.

VENUE—PARTIES TO ACTION—MOTIONS FOR CHANGE—TIME OF MAKING—WAIVER OF RIGHT.

1. Under Code, § 195 (2), providing that the court, in its discretion, may change the venue when the convenience of witnesses and the ends of justice would be promoted by the change, such motion may be made at any time in the progress of the cause.

2. The filing of an affidavit and motion for change of venue, in vacation, before the clerk, is invalid; the motion must be made before the judge.

3. Under Code, § 195, providing for change of venue when the county designated is not the proper county, and requiring such motion to be made before the time of answering expires, the motion must be made at the return term if the complaint is then filed, and, if not, as soon as the complaint is filed, and before answering; and either the filing of an answer without suggestion or demand for removal, or the acceptance of a special order extending the time to answer, is a waiver of the right to remove.

Appeal from Superior Court, Lenoir County; Peebles, Judge.

Action by J. T. Riley and others against J. W. Pelletier. From an order granting a removal of the cause, plaintiffs appeal. Reversed.

N. J. Rouse, for appellants.

Simmons & Ward, for appellee.

CLARK, C. J. Plaintiffs, other than Lovett Hines, are nonresidents of the state. The defendant resides in Carteret county. The summons was returnable to April term, 1902, of Lenoir superior court; complaint was filed at that term, and entry made, "time to answer." The next term began 11th November, at which term the answer was filed. In the meantime, on 17th October, 1902, the defendant filed an affidavit and motion to remove the cause to Carteret, but it does not appear that notice of this motion was served on any of the plaintiffs or their attorneys. At November term, 1902, and succeeding term, the motion and cause were continued. At March term, 1903, the motion to remove was granted.

"Lovett Hines, Agent, " who resides in Lenoir county, was joined as party plaintiff. It is alleged in the complaint that he was the agent of his coplaintiffs, and as such rented out the lands, and was authorized to collect the stipulated rent thereon for the conversion of which this action was brought The answer, while denying information upon the above allegation, admits that said Hines was agent for his coplaintiffs in taking possession of the crop, and sets up as a defense that he took more of the crop than was due. The Code (section 177) requires that the real party in interest should be plaintiff, "except as otherwise provided, " and section 179 authorizes, among others, "a trustee of an express trust" to sue, and defines him to be "a person with whom, or in whose name a contract is made for the benefit of another." It is suggested that Hines, upon the averments in the complaint, was the "trustee of an express trust, " the alter ego of the landowners to rent the land and collect the rents, and hence that he was prima facie a proper party, and, being a resident of Lenoir county, it was therefore error to remove the cause on the ground assigned in the motion, under Code, 8 192, for the residence of defendant in Carteret. We do not find it necessary to pass upon this point.

The court, in its discretion, may remove the trial "when the convenience of witnesses and the ends of justice would be promoted by the change" (Code, § 195 [2]), and such motion may be made at any time in the progress of the cause. The restriction that the motion to remove must be made "before the time of answering expires" applies only when "the county designated in the summons and complaint is not the...