Garrett & Co. v. Bear

Clark, C. J. This action was brought to Halifax Superior Court. Tbe defendant, a resident of New Hanover County, asked for a removal to that county as a matter of right. Tbe Court found as facts: That tbe plaintiff was created a corporation under tbe laws of this State with its borne office in tbe county of Halifax, where'it still owns real and personal property and does some business; that it keeps its stock-books and records of all directors and stockholders’ meetings there, and bolds all such meetings in said county according to tbe provisions of tbe charter, and has always done so; but in September, 1903, it removed its principal place of business and home office for transaction of business to Norfolk, Va. Tbe Court further found that tbe summons was issued 1Y March, 1906, returnable to June Term, 1906 (beginning 4 June) ; summons was served 30 March and complaint filed 22 May; that at tbe request of tbe defendant, tbe plaintiff consented that tbe defendant should have till 15 July to file answer, without prejudice to tbe plaintiff’s right of trial at August Term; that on Y July the defendant sent to tbe Judge in vacation a motion to remove to New Hanover, upon which be took no action; that at August Term by consent the' defendant was allowed to file answer, and tbe motion to remove was continued without prejudice to tbe next term, at which tbe Court held that tbe defendant was not entitled to remove as a matter of right, and refused to remove tbe case as a matter of discretion, and also refused to remove for convenience of witnesses, because no affidavit was filed. *25 The residence of a corporation for the purposes of Federal jurisdiction is in the State creating it. Whether a corporation should be held a “citizen” of the State creating it, for the purpose of removal to the Federal Court, has always been questioned, and the opposite ruling has been and is productive of much evil, but seems settled. The plaintiff is a resident of North Carolina, and as between the counties within the State, Revisal, sec. 422 (Acts 1903, ch. 806), is explicit, “For the purpose of suing and being sued, the principal place of business of a domestic corporation shall be its residence.” The residence of the plaintiff is marked out by its charter, which requires its directors and stockholders’ meetings to be held in Halifax County. In Ex-parte Scollenberger, 96 U. S., 377, Waite, C. J., says: “A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter,” adding that it may “transact business anywhere unless prohibited by its charter or excluded by local laws.” Welty on Assessments, p. 106, defines the residence of a corporation as follows: “The residence or domicile of a corporation has been defined to be where the governing power of the corporation is exercised; where those meet in couneil who have a right to control its affairs and prescribe what policy shall be pursued, and not where the labor is performed in executing the requirements of the corporation in transacting its business.” This is quoted and approved in Grundy v. Coal Co., 94 Tenn., 309. The action was therefore properly brought in Halifax County, where the “plaintiff resided.” Revisal, sec. 424. Even had it been otherwise, the motion to remove as a matter of right (and not for convenience of witness or to secure an impartial trial) came too late. It should have been made at the return term “before time of answering expired,” when complaint has been filed. Revisal, sec. 425 ; Riley v. Pelletier, *26 134 N. C., 316. The agreement for an extension of time till next term was, besides, of itself an acceptance of jurisdiction and a waiver of any right to remove. Howard v. Railroad, 122 N. C., 952 3 Riley v. Pelletier, supra,. The same reasoning as to waiver of extension of time applies to removals to the Federal Court and from one county to another. In Roberts v. Connor, 125 N. C., 45, there is nothing to the contrary; the Court holding that it was error to order the removal, added that it would be obiter to discuss whether the motion had been made in apt time. Nor could the motion be made out of term or out of the district. Howard v. Railroad, supra. The refusal to remove for convenience of witnesses and in the interest of justice is not reviewable. Affirmed.