Smithdeal v. Wilkerson

• Decision Date: 02 April 1888
• Citation: 100 N.C. 52,6 S.E. 71
• Court: North Carolina Supreme Court
• Parties: Smithdeal v. Wilkerson.

6 S.E. 71

(100 N.C. 52)

Smithdeal

v.Wilkerson.

Supreme Court of North Carolina.

April 2, 1888.

Venue in Civil Cases—Action to Recover Personalty—Code N. C. § 190.

An action for recovery of personal property not detained under legal process may be brought in the county where plaintiff resides, although the property claimed is in another county; and defendant is not entitled to a change of venue under Code N. C. § 190, subd. 4, providing that "actions for the recovery of personal property distrained for any cause must be tried in the county where the subject of the action, or some part thereof, is situated."

Appeal from superior court, Rowan county; Clark, Judge.

Appeal by Wilkerson, defendant, from an order denying a change of venue.

J. W. Broum, for appellant.

T. F. Kluttz, for appellee.

Davis, J. This is a civil action for the recovery of personal property. The plaintiff alleges that he is the surviving partner of Smithdeal & Ritchie, and, as such, is the owner, and entitled to the immediate possession, of the horse described in the complaint. The plaintiff is a resident of Rowan county, and claims the horse by virtue of a chattel mortgage executed by one Daniel to Smithdeal & Ritchie, and duly registered in Cabarrus county. The defendant is a resident of Stanly county, and the plaintiff alleges that the horse is wrongfully detained by him. At the same time that the summons was issued to the county of Stanly, (November 3, 1887,) the plaintiff filed the necessary affidavit, etc., for claim and delivery, which was issued, and under which the horse was taken by the sheriff of Stanly; but, the defendant giving the requisite undertaking, the horse was left in his possession. At the return-term, after complaint filed, and before answering, and before the time to file an answer expired, the defendant made a motion in writing for a change of venue from the county of Rowan to the county of Stanly, in which the defendant resided, and in which the horse, the subject of the action, was when the summons and order were issued. "The court (Clark, J.) being of opinion, upon a proper construction of section 190, subsection 4, of the Code, that the plaintiff can bring his action in the county of Rowan, in which the plaintiff resides, the motion for change of venue was denied." From this the defendant appealed.

The defendant insists that this action should have been brought to the county of Stanly, in which the defendant resides, and where the horse, the subject of the action, is. He says it is governed by section 190, subsec. 4, Code, which provides "that actions for the recovery of personal property distrained for any cause must be tried in the county in which the subject of the action, or some part thereof, is situated;" and that the place of trial should be changed, as provided in section 195 of the Code. This depends upon the construction to be placed upon the words "distrained for any cause." It is said by Chief Justice Taylor, in Kitchen v. Tyson, 3 Murph. 314: "It is a rule that where a statute makes use of a word, the meaning of which was well ascertained at common law, the word will be understood in the sense it was at common law." The same rule is laid down in Adams v. Turrentine, 8 Ired. 150. The word "distrained, " used in the Code, must of necessity constitute an exception to this general rule. The old action of "distress, " which Blackstone says was of "great use and consequence, " was limited to the distraining cattle or goods for non-payment of rent or other duties, or distraining another's cattle...