Lowther v. Wilson

PeR CuRiam. The court’s discretionary ruling was premature. “. . . (I)t is impossible to anticipate what issues may be raised, when answer or other pleadings are filed. But, until the allegations of the complaint are traversed, the occasion for the exercise of discretion will not arise upon the motion for removal for the convenience of witnesses and the promotion of justice. If issues of fact are raised when the answer is filed, which will necessitate a jury trial and the attendance of witnesses, the court may in its discretion grant (the) motion to remove . . . for convenience of witnesses and the promotion of justice.” Indemnity Co. v. Hood, Comr., 225 N.C. 361, 34 S.E. 2d 204. Defendants’ contention that plaintiff has waived his right to invoke the well settled rule of the Hood case is not sustained. The judgment below will be vacated in toto. Defendants, if so advised, may, before answering, insist upon a ruling on the components of their motion asserted as a matter of right. And after answers are filed, if issues are j oined, they may insist upon a ruling on the motion for removal for convenience of witnesses and promotion of justice. Reversed.