Trustees of Catawba College v. Fetzer

Hoke, J. Our statute, Revisal, sec. 425, provides that, “if tbe county designated in tbe summons and complaint be not the proper county, tbe action may, notwithstanding, be held there, unless tbe defendant, before tbe time for answering expires, demands, in writing, that the trial be held in tbe proper county.” Construing tbe section, our Court bolds that, “in order for a litigant to avail himself of tbe right, conferred by tbe statute, tbe motion to remove must be formally made and in apt time,” and further, that, although a defendant might have answered at any time during tbe term, bis time to answer has expired, within tbe meaning of tbe law, whenever be has filed a formal answer to the merits. County Board v. State Board, 106 N. C., 82; McMim v. Hamilton, 77 Mo., 300. If it be conceded that a right of removal exists in tbe present case, tbe defendant, having filed formal answer, must- be taken to have waived bis privilege of removal. The authorities are decisive against tbe defendant’s position, and tbe judgment of tbe Superior Court, denying tbe motion, is' Affirmed.