Summary
In Cloman v. Staton, 78 N.C. 235, it is said that a motion to dismiss because the action is brought in the wrong county will be treated as a motion to remove.
Summary of this case from McCullen v. R. ROpinion
(January Term, 1878.)
Practice — Guardian Bond — Removal of Action Brought in Improper County.
1. A guardian bond is an official bond within the meaning of C. C. P., sec. 65 (a).
2. An action upon a guardian bond, brought in a county other than the one wherein the bond was given, is triable in such county unless the defendant moves to remove the action to the proper county.
3. In such case, a motion by defendant to dismiss the action should be treated as a motion to remove.
SMITH, C. J., having been of counsel, did not sit on the hearing of this case.
APPEAL from Cannon, J., at Fall Term, 1877, of EDGECOMBE.
This was an action upon a guardian bond executed by the defendants. Upon return of the summons the defendants moved to dismiss the action for that the bond and returns of the guardian were made in the county of Martin, where the guardian qualified and resided, and insisted that the action should have been brought in Martin instead of Edgecombe. The plaintiff resisted the motion, contending that the plaintiff being a resident of Edgecombe, the venue was properly laid; and that at most the action could only be removed to Martin for trial if the defendants should move for a removal. The court being of opinion with defendants, dismissed the action, and thereupon the plaintiff asked his Honor to remove it to Martin for trial, which was refused, and the plaintiff appealed.
George Howard, Gilliam Gatling, J. L. Bridgers, Jr., for (236) plaintiff.
James E. Moore for defendants.
There is no doubt that Edgecombe, where the plaintiff lived, was not the proper county, and that Martin, where the defendant lived and gave his guardian bond, was the proper county in which to try the suit upon the guardian bond. C. C. P., sec. 68 (a); Stanly v. Mason, 69 N.C. 1; Steele v. Commissioners, 70 N.C. 137. A guardian bond is an "official bond" within the meaning of the statute.
In the cases heretofore before the Court, the main question was as to the proper county, but in this case the question is also made as to the time and manner of raising the question, and the party which is to raise it.
It seems that upon the return of the summons to the wrong county, the right of the defendant is "to demand that the trial be had in the proper county." If he does not so demand, then the action may go on and be tried in the wrong county. C. C. P., sec. 69.
The defendant did not move to "remove to the proper county," but his motion was to dismiss the action so that it could not be tried in either county; whereas the statute says that it may be tried in the wrong county to which it is brought unless the defendant will move to "remove to the proper county."
It is true that in the cases cited the defendant's motion was to dismiss, as in this case, and they were dismissed. But the point was not made that the proper motion was to "remove" and not to dismiss.
In Jones v. Commissioners, 69 N.C. 412, an erroneous report of the case puts the Court in the fault of overlooking a point in the case. The report says that there was a motion below, not only to dismiss, but to remove, and the counsel's brief says the same thing, while in the (237) opinion of the Court it is stated that the motion to dismiss was the only point. I find in looking into the original papers that the opinion of the Court was right. The record shows that the only motion was to dismiss, and the judge's case states the same.
The object in those cases seemed to be to determine only the question as to which was the proper county. But here the point was raised and insisted on by the plaintiff that if Edgecombe was not the proper county, and Martin was, then that it ought to be removed to Martin. And that distinguishes this case from the others.
The plaintiff brought his action in Edgecombe, where he was willing to try it, and where it was triable, unless the defendant should demand that it should be tried in Martin. He did not demand that it should be tried in Martin, but objected to its being tried at all, and his Honor dismissed it. In this there was error. His Honor ought to have treated it as a motion to remove, and removed it accordingly.
The objection that the plaintiff did not move in apt time, i. e., not until after the order dismissing the action, has no force in it, for the reason that the plaintiff was not obliged to move for removal at all. It was for the defendant to make that motion, and upon his failure to do so the case might have been tried in Edgecombe. Or under subdivision (1) of section 69, C. C. P., the court might have removed the case upon the suggestion of either party, or probably mero motu.
PER CURIAM. Reversed.
Cited: Jones v. Statesville, 97 N.C. 87; Clark v. Peebles, 100 N.C. 352; McNeill v. Currie, 117 N.C. 346; Baruch v. Long, ibid., 512; McCullen v. R. R., 146 N.C. 569; McArthur v. Griffin, 147 N.C. 550.
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