Chevrolet Co., Inc. v. . Cahoon

Schehok, J. Tbe question posed by this appeal is as stated in appellant’s brief, namely, “Did tbe court commit error in refusing to remove this case from Washington County to Pasquotank County?” C. S., 463 (4), provides tbat actions for tbe recovery of personal property must be tried in tbe county in which the subject of tbe action or some part thereof is situated. If tbe action be one in which tbe recovery of personal property is not tbe sole or chief relief demanded it is not removable to tbe county in which personal property is located, Bowen Piano Co. v. Newell, 177 N. C., 533, 98 S. E., 774; but, on tbe other band, if tbe action be one in which tbe recovery of specific personal property is tbe principal relief sought, tbe action is removable to tbe county where tbe property is situated. Fairley Bros. v. Abernathy, 190 N. C., 494, 130 S. E., 184. Therefore, tbe answer to tbe question posed lies in tbe determination of whether tbe sole or chief relief demanded in tbe case at bar is tbe recovery of personal property. Tbe appellant Beals contends tbat as to him at least it is, in fact be contends'as to him it is tbe only relief sought; while tbe appellee, tbe House Chevrolet -Company, contends tbat tbe action is a single action against all of tbe defendants and, when considered as a whole, tbe principal relief sought and demanded is tbe payment of tbe debt due by tbe defendants Caboon to it, and tbe seizure of tbe personal property upon which they executed a chattel mortgage to secure tbe debt was but ancillary to tbe principal purpose of tbe action. We are of tbe opinion, and so bold, tbat tbe contention of tbe appellee, tbe plaintiff, is correct, tbat is, tbat tbe chief relief sought is tbe collection of tbe debt, and tbat tbe subjection of tbe automobile to sale for sucb purpose is but incidental. Tbe right of tbe plaintiff to recover tbe amount of tbe debt sued for is in no wise based upon tbe seizure and sale of tbe automobile. In *378 this respect, as in others, the ease at bar is distinguishable from Marshburn v. Purifoy, 222 N. C., 219, 22 S. E. (2d), 431. The contention of the defendant that there were two actions pending: one against the defendant Beals and one against the defendants Cahoon, is untenable for the reason that the court below both found as a fact and adjudicated as a matter of law that the summons and ancillary proceeding in claim and delivery issued for and served upon W. A. Beals and the summons for and served upon defendants Edward P. Cahoon and Murial Cahoon were in, and intended to be in, the same action. The record furnished sufficient evidence upon which to base this finding of fact by the court below and we are therefore bound thereby, and such finding of fact supports the conclusion of law which is based thereupon. The judgment below is Affirmed.