Roberts & Hoge, Inc. v. Moore
| Decision Date | 04 April 1923 |
| Docket Number | 283. |
| Citation | 116 S.E. 728,185 N.C. 254 |
| Parties | ROBERTS & HOGE, INC., v. MOORE ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; W. A. Devin, Judge.
Action by Roberts & Hoge, Inc., against Hugh Moore and others partners trading as Hugh Moore & Bros. Default judgment for plaintiff, and defendants appeal. Judgment reversed.
Appeal from judgment by default final, on certain promissory notes of defendant to plaintiff, entered against defendant in New Hanover superior court on December 15, 1922, before his honor W. A. Devin, Judge.
There being indication from the transcript of record originally presented that said judgment by default had been entered after adjournment of the superior court, and hence out of term, in response to instanter writ of certiorari from this court, notice being waived by the parties, the clerk of said court certifies that December term of superior court had not adjourned at the time, and the judgment complained of was entered during said term.
From the facts presented in the record or unchallenged on the argument before us, it appears that plaintiff is a foreign corporation doing business in Richmond, state of Virginia and that the defendants, each and all of them, are citizens and residents of the county of Sampson, doing business in that county, and were such at the time of action commenced and have been since, and that neither of them do business or own property in New Hanover county. It further appears that the summons in the cause was issued from superior court of New Hanover county on November 14, 1922, returnable before the clerk of said court on November 24, 1922, the time for answering the complaint in the cause not expiring before December 14, 1922: that on December 12, 1922, defendant moved in writing before the clerk for a change of venue to the county of Sampson, supported by affidavit showing the citizenship and residence of the parties; that notice for such motion with copy of affidavit was issued and served on December 12, and fixing time for hearing same before the clerk on December 18, 1922; that within the time allowed by law, to wit, on the day of the rendition of the judgment defendants duly entered their appeal from same, assigning for error, among other things, that the judge of the superior court was without power to enter said judgment pending a motion for change of venue duly entered and before the clerk and undetermined at the time.
Faircloth & Fisher, of Clinton, and Weeks & Cox, of Wilmington, for appellants.
Wright & Stevens, of Wilmington, for appellee.
Under section 469, Consolidated Statutes, if the facts embodied in the affidavit of defendants are true, and they were taken as true on the argument before us, the proper venue for the trial of this cause is in Sampson county. In this view of the record, section 470, C. S., provides that, if the county designated for...
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...apt time, otherwise the question of venue will be waived. G.S. 1–83; Davis v. Davis, 179 N.C. 185, 102 S.E. 270 [1920]; Roberts v. Moore, 185 N.C. 254, 116 S.E. 728 [1923]; Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390 [1936]; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481 ......
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...94 (1961). Its grant or denial is immediately appealable. Coats v. Hospital, 264 N.C. 332, 141 S.E.2d 490 (1965); Roberts v. Moore, 185 N.C. 254, 116 S.E. 728 (1923); Cecil v. High Point, 165 N.C. 431, 81 S.E. 616 (1914). When finally adjudicated by a court of competent jurisdiction, its st......
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Dechkovskaia v. Dechkovskaia, COA15–91.
...power to proceed further in essential matters until the right of removal is considered and passed upon." Roberts & Hoge, Inc. v. Moore, 185 N.C. 254, 116 S.E. 728, 729 (1923). In the instant case, the trial court properly considered defendant's motion for change of venue before proceeding o......