Marshburn v. . Purifoy

Winborne, J. Actions for the recovery of personal property must be tried in the county in which the property or some part of it is situated, subject to the power of the court to change the place of trial in cases provided by law. C. S., 463 (4). Under this statute, we are of opinion and hold that proper venue for this action is in Craven County. Decisions of this Court, interpretive of the statutory rule, are to the effect that where the recovery of personal property is the sole relief demanded, or even the chief, main or primary relief, the other being an incidental part, the county in which the personal property or some part of it is situated is the proper venue. Brown v. Gogdell, 136 N. C., 32, 48 S. E., 515; Edgerton v. Games, 142 N. C., 223, 55 S. E., 145; Fairley v. Abernathy, 190 N. C., 494, 130 S. E., 184. See also Annotations 126 A. L. R., 1190 (n). In Brown v. Cogdell, supra, it is said: “The recovery of personal property, being the chief object of this action, and not merely an incidental matter (Woodard v. Sauls, 134 N. C., 274), and the motion to remove having been made fin writing’ and in apt time, i.e., ‘before the time for answering’ expired, the removal was a matter of right, not of discretion.” *222 The beadnote in Edgerion v. Games, supra, epitomizes tbe decision there in this manner: “Where a complaint sets out three different causes of action, one of which is for the recovery of personal property, the court properly granted the defendant’s motion to remove the cause to the county in which such property is situated.” The case at bar expressly has, as one of its objects, the recovery of the ninety-one phonographs. And it is manifest from the allegations in the complaint that the other relief sought, that is, to have the relationship between plaintiff and defendant, regarding the phonographs, declared to be that of mortgagor and mortgagee so as to require defendant to account for the proceeds realized from the use and operation of the phonographs in an amount sufficient to pay the balance due on the conditional sale agreement and on the note secured by the chattel mortgage, is not for the purpose of predicating a recovery of damages, but for the recovery of the phonographs. Furthermore, the prayer for recovery of any surplus of the proceeds realized from use and operation of the phonographs, remaining in hands of defendant after satisfying plaintiff’s obligations under the conditional sale contract and under the chattel mortgage, is based upon right of plaintiff to recover the property. Thus, it seems clear that the primary object of the action is the recovery of personal property— the phonographs in question. The present action is distinguishable in factual situation from the cases of Woodard v. Sauls, supra; Clow v. McNeill, 167 N. C., 212, 83 S. E., 308; Piano Co. v. Newell, 177 N. C., 533, 98 S. E., 774; Guy v. Gould, 199 N. C., 820, 155 S. E., 925. In the light of what is here said, the judgment below is Reversed.