Bowen Piano Co. v. Newell

PeR CukiaM. While, as a general rule, an appeal does not lie from the refusal to dismiss an action, Pell’s Rev., p. 313, sec. 587, where *535 many of the eases are collected, it does lie from a refusal to remove because of a wrong venue. Pell’s Rev., p. 309, cb. 12, sec. 587,. citing Brown v. Cogdell, 136 N. C., 32, and other cases. The motion to dismiss, though, was properly overruled, as it was not a question of jurisdiction but of venue, or place of trial. The court had general jurisdiction of such actions, and we must, therefore, confine our inquiry to the second ground of the motion. We are of the opinion that both Judge Starbuck and Judge Bryson were right in refusing a removal on this ground. The matter has been thoroughly well settled by our decisions and an independent discussion of it is not called for. A removal was requested in Woodard v. Sauls, 134 N. C., 274, in a case similar to this one and denied in the Superior Court. The judgment was affirmed here. It was there held that “Where the recovery of personal property' is not the sole or chief relief demanded, an action need not necessarily be brought in the county in which the property is located.” Referring to that case in another of a like kind (Clow v. McNeill, 167 N. C., 212, at p. 214), Justice Allen said: “The action was improperly removed to the county of Lee, as it is an action for an accounting, and the ownership of the notes and bonds was only raised incidentally. The case of Woodard v. Sauls, 134 N. C., 274, is directly in point. In that .case it was alleged that the defendant was indebted to the plaintiff by promissory notes and for further large sums, and that, to secure such indebtedness, had turned over to the plaintiff sundry notes; that the defendant afterwards got possession of a portion of said notes to be collected by him as agent of the plaintiff, and applied on said indebtedness, which the defendant had not done, and that the defendant got possession of another portion of said collaterals surreptitiously, without the knowledge or consent of the plaintiff, and retained the same, to recover which notes plaintiff sued out the ancillary proceeding of claim and delivery; and it was held that where the recovery of personal property is not the sole or chief relief demanded, an action need not necessarily be brought in the county in which the property is located, and that the action ought not to be removed. This case is not in conflict with Brown v. Cogdell, 136 N. C., 32, and Edgerton v. Games, 142 N. C., 223, as in the first of these cases the only question involved was the ownership of certain furniture, and in the second a separate and distinct cause of action was alleged in the complaint for the recovery of a horse.” It is also apparent, from reading the two cases, that Mfg. Co. v. Brower, 105 N. C., 440, and Connor v. Dillard, 129 N. C., 50, are not authorities in favor of a removal of this case, because the first of them was,, as the court says, substantially for the foreclosure of a mortgage of land and the second for the sole subjection of the particular tract *536 of land described in the pleadings, to the payment of the debt, confining the entire relief for the satisfaction of the debt to that tract. That case was also in the nature of one for the foreclosure of a lien upon land. Mfg. Co. v. Brower, supra. There was no error in the proceedings of the County and Superior Court. Affirmed.