Flythe v. . Wilson

Winborne, J. Defendant,' as appellant, assigns as error only the action of the judge below in rendering judgment denying motion of defendant for the removal of the action from the Superior Court of Wayne County to, and for trial in the Superior Court of Craven County. Upon the record, however, as it comes to this Court, it does not appear that there is error in the judgment rendered. Defendant argues with force and merit (1) that an action for the recovery of a penalty or forfeiture, imposed by statute, must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of the trial, G. S., 1-77, and (2) that the forfeiture of interest, and the penalty for usury are imposed by statute. G. S., 24-2. All v. Mtge. Co., 104 S. C., 239, 88 S. E., 529; Norman v. Campbell (Okla.), 108 P. (2d), 789. Even so, the record on this appeal fails to show in what county the cause of action arose. It is true that defendant sets forth in his motion, as a ground for removal, that the complaint shows that the first alleged cause of action, upon which plaintiff seeks to recover, is for the “recovery of a penalty or forfeiture, imposed by statute,” growing out of matters and transactions alleged to have occurred in Craven County, where the alleged cause of action, if any, arose. But an inspection of the complaint fails to show in what county the alleged cause of action arose, and neither the Clerk nor the Judge, in passing upon the motion in the court below, makes any finding in that respect. Moreover, the record presents no exception to the failure of the Clerk, or of the Judge to make such finding. Hence, in the absence of any finding in that respect, it will he presumed that the Clerk and the Judge in finding that Wayne County is the proper venue for the action, found facts sufficient to support the judgment. Defendant also contends that the second cause of action is for the recovery of personal property within the meaning of G. S., 1-76 (4), which provides that actions for the recovery of personal property must *233 be tried in tbe county in wbicb tbe subject of tbe action, or some part thereof, is situated, subject to power of tbe court to change tbe place of trial. It will be noted, however, that tbe second cause of action is not for -the recovery of specific tangible articles of personal property. Hence, tbe provisions of G. S., 1-76 (4), are inapplicable. Defendant further contends that under tbe provisions of USCA 11, Section 46, subsection (b), suits by tbe trustee shall be brought and prosecuted only in tbe courts where tbe bankrupt might have brought or prosecuted them if tbe proceeding under tbe statute bad not been instituted, and that, hence, tbe bankrupt not being a resident 'of Wayne County, tbe trustee could not have instituted tbe action there. A reading of tbe whole section indicates that tbe above statute relates to matters of jurisdiction, and not venue, and merely authorizes tbe trustee to sue in tbe State courts. Let it be noted that it does not appear that tbe court passed upon that part of tbe motion for removal of tbe action for convenience of witnesses, etc. Hence, decision here is without prejudice thereto. For causes stated tbe judgment below is Affirmed.