Thompson v. Horrell, 542
| Decision Date | 12 January 1968 |
| Docket Number | No. 542,542 |
| Citation | 158 S.E.2d 633,272 N.C. 503 |
| Court | North Carolina Supreme Court |
| Parties | J. Wiley THOMPSON, Plaintiff, v. Hugh D. HORRELL, Defendant. |
John V. Hunter, III, Raleigh, for plaintiff appellant.
Wheatley & Bennett, Beaufort, Boyce, Lake & Burns, Raleigh, for defendant appellee.
The form of action alleged in the complaint determines whether a cause is local or transitory. Blevens v. Kitchen Lumber Co., 207 N.C. 144, 176 S.E. 262. Plaintiff's action is to recover monetary damages for the breach of a contract to construct a house. Its purpose is not to recover real property, not to determine an estate or interest in land, and not to recover for injuries to realty. It is not, therefore, a local action within the meaning of G.S. § 1--76(1), and defendant is not entitled to have the cause removed to Carteret County as a matter of right. Casstevens v. Wilkes Telephone Membership Corp., 254 N.C. 746, 120 S.E.2d 94; Lamb v. Staples, 234 N.C. 166, 66 S.E.2d 660; White v. Rankin, 206 N.C. 104, 173 S.E. 282; Warren v. Herrington, 171 N.C. 165, 88 S.E. 139. The test is this: If the judgment to which plaintiff would be entitled upon the allegations of the complaint will affect the title to land, the action is local and must be tried in the county where the land lies unless defendant waives the proper venue; otherwise, the action is transitory and must be tried in the county where one or more of the parties reside at the commencement of the action. G.S. § 1--82. Penland v. Red Hill Methodist Church, 226 N.C. 171, 37 S.E.2d 177; 1 McIntosh, North Carolina Practice and Procedure § 771 (2d Ed., 1956).
The cause which plaintiff has stated was properly brought in Wake, the county of his residence, and defendant cannot force its removal to Carteret County as a matter of right. The judge, aware of the rule, did not order the case removed as a matter of law but attempted to transfer it in his discretion. His Honor obviously concluded that the ends of justice and the convenience of witnesses would require that this action (begun in Wake County for the breach of a contract to build a house) and defendant's action to foreclose a laborer's lien on the same house (instituted in Carteret County as required by G.S. § 1--76) be tried together. Nevertheless, in ordering the removal before defendant had filed his answer, the judge acted prematurely. '(U)ntil the allegations of the complaint are traversed, the occasion for the exercise of discretion will not arise upon the motion for removal for the convenience of witnesses and the...
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...consistently exercised jurisdiction to reverse an untimely order related to the inconvenience of venue. See Thompson v. Horrell , 272 N.C. 503, 505, 158 S.E.2d 633, 655 (1968) ; ITS Leasing, Inc. v. Ram Dog Enters., 206 N.C.App. 572, 576, 696 S.E.2d 880, 883 (2010) ; Smith v. Barbour , 154 ......
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Fox Holdings, Inc. v. WHEATLY OIL CO., INC.
...judgment to which a plaintiff would be entitled upon the allegations of the complaint will affect the title to land. Thompson v. Horrell, 272 N.C. 503, 158 S.E.2d 633 (1968). In determining whether the judgment sought by plaintiff would affect title to land, the court is limited to consider......
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...532, 94 S.E.2d 651 (1956); Webster, Real Estate Law in North Carolina, §§ 12 to 18 (1971) (real fixtures). See also, Thompson v. Horrell, 272 N.C. 503, 158 S.E.2d 633 (1968); Gurganus v. Hedgepeth, N.C.App., 265 S.E.2d 922, 923 (1980); Wise v. Isenhour, 9 N.C.App. 237, 175 S.E.2d 772 (1970)......
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...and must be tried in the county where one or more of the parties reside at the commencement of the action.Thompson v. Horrell, 272 N.C. 503, 504–05, 158 S.E.2d 633, 634–35 (1968). For purposes of venue, this Court has previously held that a party to a leasehold has “an estate or interest in......