Graham v. Charlotte & S. C. Rail Road , 64 N.C. 631 ( 1870 )

The defendant set forth, that no part of the track of said road is situated in the county of Orange, and that the only county in the State, in which such road is situated, is Mecklenburg, — and demanded that trial should be removed to the latter county, according to C.C.P., § 69.

The Court, after finding the facts to be as stated by the defendant, was of opinion that in cases where Railroad Companies are defendants, upon comparing the act of 1868-'9, c. 257, with that of 1868-'9, c. 277, actions may be brought in the Court of the county of either party; and thereupon, refused to make the order.

The defendant appealed. The Code of Civil Procedure, by Title VI, fixes "the place of trial." Title VII, relates to the summons: It (632) shall be issued by the Clerk of any Superior Court; run in the name of the State; be directed to the Sheriff of the county where the defendant resides or may be found; shall summon the defendant to appear at the office of the Clerk of the Superior Court for some certain county; the officer, to whom it is addressed, shall note on it the day of its delivery to him, and return it by mail, or otherwise, to the Clerk of the proper county — and many other details. But, strange to say, the provision as to the county to which the summons shall be returnable, is not set out, except at the end of paragraph 2, sec. 74, by way of inference from the provision: "The Clerk, before whom the defendant shall be summoned to appear, shall be the Clerk of the county in which it is provided in Title VI, that the action shall be tried." So "the county in which the action shall be tried," is the prominent idea. If the county designated in the summons as "the place of trial" be not the proper county, the action may be tried there, unless the defendant shall demand in writing, that the trial be had in the proper county, and the plain of trial be changed: Sec. 69. The relevancy of this remark will appear bellow.

"The summons shall be returnable to the regular terms of the Superior Court of the county where the plaintiffs, or one of them, or the defendants, reside:" Acts 1868-'9, ch. 81, altering the Code of Civil Procedure, in regard to the return of the summons, and making it returnable to the county where the plaintiff or the defendant resides, at the election of the plaintiff. This is done in language, such as our Statutes had been accustomed to use.

"The ``venire in actions' against Railroad corporations, shall be laid in some county wherein the track of said company is situated:" Acts 1868-'69, ch. 257. We take it, that "venire" is a mis-print for "venue," or "the place of trial," going back to the prominent idea of the Code of Civil Procedure. Originally in England writs were returnable to the Courts at Westminister, and every (633) fact alleged in pleading, was laid with a venue, to fix the vicinage, or county, to which the "venire" should issue, and from which the jury should come. Afterwards the nisi prius clause was resorted to, so as to have the trial in the county where the "venue" was laid. That became a very important matter, for it fixed "the place of trial," and it was provided by Statute that all subsequent pleadings should conform to the declaration in respect to the venue, except in matter in its nature local, unless the venue was changed by leave of the Court.

In this State, by the procedure before the Code, writs, except in local actions, were returnable to the Court of the county where the plaintiff or the defendant resided, and that was the county in which the venue was laid, and was the place for trial, unless the case was removed to some other county for trial, on affidavit. This resume is made in order to show that the word "venire," in the acts 1868-'69, ch. 257, is used in the sense of "place of trial," adopting the idea of the Code of Civil Procedure. The word is inartificially used, and the draftsman was not an expert in technical terms, but it is the only construction by which to make any sense of it, and the Court must adopt it.

Taking the Code of Civil Procedure, and the acts 1868-'69 chs. 26 and 257 together, the effect is: in all civil actions, other than local, the summons shall be returnable, and the trial be had in the county where the plaintiff or the defendant resides, at the election of the plaintiff, provided, however, that in actions against Railroadcorporations, the summons shall be returnable, and the trial be had in some county wherein the track of said company, or some part of it, is situated. In our case, the track of the road is situate in the county of Mecklenburg. It follows that the summons ought to have been returnable to a Term of the Superior Court held in that (634) county, and that it should be the place of trial, or of the venue.

It is unnecessary to notice the other objection, to-wit: that "the Judge had no power to enter judgment out of term time," further than to say, that the effect of the act of 1868-'69, "suspending the Code of Civil Procedure in certain cases," and requiring all writs of summons in civil actions to be returnable to the regular Terms of the Superior Courts, and not to the Clerk, may have the effect to relieve the Judge of the duty of keeping a docket of civil actions, and to so modify the Code of Civil Procedure as to make it irregular to enter judgment in such cases in vacation.

The judgment below is reversed, and the action dismissed.

Per curiam.

Reversed.

Cited: Leach v. R. R., 65 N.C. 487; Kingsbury v. R. R., 66 N.C. 284;Hayes v. Coward 116 N.C. 840; Russell v. Ayer 120 N.C. 212; Jones v.Brinson, 238 N.C. 509.