Galligan v. Smith

MOEKIS, Judge. Appellee relies on G.S. 1-77 (2) to support his motion for removal of the action to Orange County. This statute reads as follows: “Where cause of action arose. — Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, in the cases provided by law: (2) Against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his command or in his aid does anything touching the duties of such officer.” In Kanipe v. Kendrick, 204 N.C. 795, 169 S.E. 188 (1933), plaintiff sought to recover from two deputies sheriff of Cleveland County for injuries received by him as a result of their negligence in handling a loaded sawed-off shotgun on a street in Shelby, N. C'., “in the performance of their official duties, and by virtue of their offices.” The action was brought in Meck-lenburg County, the home of plaintiff, and defendants moved to have the action removed to Cleveland County where the action arose “on the ground that the defendants are public officers of [538] Cleveland County, to wit, deputy sheriffs, and that the acts complained of by the plaintiff were done by them in the performance of their official duties, and by virtue of their offices.” The action was brought in Mecklenburg County and was heard by the Clerk of the Superior Court of Mecklenburg County on motion of defendants for removal to Cleveland County. The Clerk granted the motion and ordered that it be removed to Cleveland County. Plaintiff appealed to the Superior Court which affirmed. On appeal the Supreme Court affirmed, holding that the two deputies of Cleveland County were “public officers” for purposes of the change of venue statute. The case at bar is controlled by the Kanipe case, swpra, since there is no distinguishable difference between the two. Affirmed. Judges Brock and Vaughn concur.