Southern Cotton Oil Co. v. Grimes

Adams, J. Tbe plaintiff is a nonresident corporation, and tbe defendant a resident of Martin County. On 5 December, 1921, tbe plaintiff brought suit in Pitt to recover damages for alleged breach of contract; and tbe defendant, before tbe time for answering expired, appeared before tbe clerk of tbe Superior Court of tbe latter county and filed a motion to dismiss the action. Tbe clerk denied this motion and ex mero motu made an order of removal to Martin, and extended tbe time for tbe defendant to answer. Tbe plaintiff appealed from this order to tbe court in term; and to an order made by bis Honor removing' tbe cause from Pitt to Martin tbe plaintiff excepted. Tbe appeal presents for review tbe correctness of bis Honor’s ruling. Anterior to tbe passage of tbe act to restore tbe provisions of tbe Code of Civil Procedure in regard to process and pleadings, tbe defendant, before tbe time for answering expired, was authorized to apply to tbe court in term for tbe removal of an action which bad been brought in tbe wrong county. Pell’s Rev., sec. 425. ’ This change in procedure did not authorize tbe clerk to remove a cause on tbe ground of improper venue. Before tbe recent amendment tbe defendant bad the right to lodge before-the clerk kis'motion for removal, and after tbe answer was filed tbe clerk transferred tbe papers to tbe court in term in order that tbe presiding judge might pass upon tbe defendant’s motion. Public Laws 1919, ch. 304; Public Laws 1920, ch. 96; Zucker v. Oettinger, 179 N. C., 277. Tbe clerk’s order of removal was affirmed on appeal, and *99 Ms Honor, having jurisdiction to bear the defendant’s motion, appropriately made an order to remove the cause to the proper venue, wbicb in this case is the county of the defendant’s residence. C. S., 469, 470, 637; R. R. v. Stroud, 132 N. C., 416; Ryder v. Oates, 173 N. C., 569. See Public Laws, Extra Session, 1921, ch. 92, sec. 15. Tbe plaintiff insists that a motion to dismiss an action for improper venue is not a motion for removal; and further, that the defendant’s motion, whatever its nature, was not in writing as required by the statute. But the case on appeal states that the defendant “filed a motion to dismiss,” and on appeal moved the court to transfer the cause to Martin County. The word “filed” negatives the idea of an oral motion, and the mere circumstance that the defendant first moved to dismiss is immaterial. Moreover, the judgment recites his Honor’s exercise of discretion, presumably for the convenience of witnesses, in ordering the removal. There being no error, the judgment is Affirmed.