Curlee v. National Bank of Fayetteville

Clarkson, J. The first' exception presents a serious question of law, which has given us much concern. The plaintiffs are residents of Mecklenburg County and the defendants are residents of Cumberland County. The civil procedure of this State, applicable to the facts in this case, is as follows: “The action must be tried in the county in which the plaintiffs, or the defendants, or any of them, reside at its commencement; or if none of the defendants reside in the State, then in the county in which the plaintiffs, or any of them, reside; and if none of the parties reside in the State, then the action may be tried in any county which the plaintiff designates in his summons and complaint, subject to.the power of the court to change the place of trial, in the cases provided by statute. “If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court. “The court may change the place of trial in the following cases: (1) When the county designated for that purpose is not the proper one; (2) WThen the convenience of witnesses and the ends of justice would be promoted by the change.” C. S. 469-470. *123 Tbe plaintiffs, wbo reside in Mecklenburg County, under our law, could sue A. B. McMillan as an individual residing in Cumberland County. Tbe plaintiffs sued McMillan and tbe bank, and in tbe complaint, in good faitb (there is nothing in tbe record to tbe contrary), joined A. B. McMillan individually as a joint tort-feasor with tbe bank. As to McMillan, there is no doubt that tbe proper venue is in Mecklen-burg County. This being tbe case, by analogy, does it not necessarily follow that tbe principle applies as laid down in Fore v. Tanning Co., 175 N. C., 583? It is said there: “We have held, in numerous cases on this subject, that when a plaintiff has sued resident and nonresident defendants for a joint wrong, tbe cause of action, as a legal proposition, must be taken and construed as tbe complaint presents it and, in such cases, on motion to remove tbe cause to tbe Federal court by reason of tbe alleged fraudulent joinder of tbe resident defendants, tbe right to removal does not arise from general allegations of bad faitb or fraud on tbe part of tbe plaintiff, however positive, but tbe relevant facts and circumstances must be stated with such fullness and detail and be of such kind as to clearly demonstrate, and 'compelí tbe conclusion’ that a fraudulent joinder has been made.” This would reconcile tbe situation and make an orderly procedure. In construing tbe National Banking Act, in reference to this matter, we do not give it tbe local significance that was argued before us. Tbe authorities are conflicting. Sec. 5198 of Federal Statutes Anno. (2 ed.), vol. 6 (1918), 928 (Locality of Actions), is as follows: “That suits, actions, and proceedings against any association under this title may be bad in any circuit, district or territorial court of tbe United States held within tbe district in which such association may be established, or in any state, county, or municipal court in tbe county or city in which said association is located having jurisdiction in similar cases.” "We think tbe construction given to this Federal act by Church, C. J., 52 N. Y. Reports (Court of Appeals), 105, is tbe correct interpretation. He says: “Tbe jurisdiction of tbe state court is denied upon tbe ground that the National Currency Act of Congress prohibited original jurisdiction. . . . Tbe alleged prohibitory statute is tbe fifty-seventh section of tbe aforesaid act. 13 Stat. at Large, 99, and provides: That suits, actions, and proceedings against any association under this act may be bad in any circuit, district or territorial courts held within tbe district in which such association may be established, or in any state, county or municipal court in tbe county or city in which said .association is located, having jurisdiction in similar cases. Provided, however, that all tbe proceedings to enjoin tbe comptroller under this act shall be bad in tbe circuit, district or territorial court of tbe United *124 States held in the district in which the association is located.’ I think the proper construction of this section is to regard the power conferred, of bringing actions against the associations in specified courts, as permissive and not mandatory. The framework of the section implies that intention. The words ‘may’ and ‘shall’ are both used; the former to confer a privilege, the latter as a mandate. It is presumed that the attention of Congress was drawn to the distinction between the ordinary import of the two words, and that they were used with reference to that distinction, and hence that, if it had been designated to limit prosecutions to the specified courts, the same word would have been employed as in limiting a particular proceeding to a specified court. There are no words of exclusion in the act, and it is a general rule as to jurisdiction, that to confer it upon one court, does not operate to oust other courts before possessing it, for the reason that concurrent jurisdiction is not inconsistent.” The following cases hold that such provisions are permissive, not mandatory, and do not deprive the state courts of jurisdiction of an action by or against a national bank located or doing business in another state or in a district or county other than that in which the action is brought: Fresno Nat. Bank v. Superior Ct., 83 Cal., 491; Continental Nat. Bank v. Folsom, 78 Ga., 449; Cooke v. State Nat. Bank, 50 Barb. (N. Y.), 339, affirmed in 52 N. Y., 96; Robinson v. Nat. Bank, 81 N. Y., 385; Talmage v. N. Y. Third Nat. Bank, 91 N. Y., 531; Lee v. Citizens Bank, 5 Ohio Dec. (Reprint), 21; Holmes v. National Bank, 18 S. C., 31; Montpelier First Nat. Bank v. Hubbard, 49 Vt., 1. See, also, Leviten v. Houghton Nat. Bank, 174 Mich., 566. In Rector v. Rector, 186 N. C., 620 (case of venue), Clark, C. J., said: “The word ‘may,’ as used in statutes, in its ordinary sense, is permissive and not mandatory. 20 A. & E. (2 ed.), 237; 26 Cyc., 1590; Black on Statutes (2 ed.), sec. 529. ‘May’ is construed ‘must’ or ‘shall’ only when public rights or interests are concerned.” 26 Cyc., 1592. Johnson v. Pate, 95 N. C., 70. There are a large number of cases in different states holding to the contrary, and that the provisions are mandatory and not permissive. There is no question that the exemption — if construed to be one — can be waived. Charlotte First Nat. Bank v. Morgan, 132 U. S., 141. For the reasons given we think the defendants’ first exception cannot be sustained. The defendants in their brief say, “For convenience we group exceptions two and three: Gross abuse of discretion.” And further say: “We realize that in seeking to reverse a trial judge on account of abuse of discretion, the appellant carries an unusual burden, but in the case' at bar, we feel fully justified in asking this Court to find that there was an abuse of discretion, and that the cause should have been removed.” *125 Tbe court below in its judgment says: “Tbe court after consideration of tbe record in tbe cause and tbe argument, and briefs of counsel, finds, as a matter of law, tbat tbe plaintiffs bave tbe right to prosecute tbe action in tbe Superior Court of Mecklenburg County and tbat sucb court constitutes a proper Tenue for said action. Tbe court further finds as a fact, tbat tbe ends of justice will be promoted by a trial of said cause in tbe Superior Court of Mecklenburg County. Tbe court further finds as a £g,ct, tbat it would not promote tbe convenience of tbe parties and witnesses to remove said cause to Cumberland County. It is thereupon ordered and adjudged tbat tbe order of tbe clerk of tbe Superior Court for Mecklenburg County removing this cause to tbe Superior Court of Cumberland County, be reversed, and tbat tbe said cause be remanded to tbe Superior Court of Mecklenburg County for trial and tbat said cause be not removed to tbe Superior Court for Cumberland County.” TJnder tbe statute, C. S., 470 (2), supra,, tbe removal lies ordinarily in tbe discretion of tbe court below, and is not reviewable. Perry v. Perry, 172 N. C., 63; Byrd v. Spruce Co., 170 N. C., 435. For tbe reasons given, we think defendants’ second and third exceptions cannot be sustained. ¥e can find no error, and tbe judgment below is Affirmed.