Thompson v. Horrell , 272 N.C. 503 ( 1968 )

158 S.E.2d 633 (1968) 272 N.C. 503

J. Wiley THOMPSON, Plaintiff,
v.
Hugh D. HORRELL, Defendant.

No. 542.

Supreme Court of North Carolina.

January 12, 1968.

John V. Hunter, III, Raleigh, for plaintiff appellant.

Wheatley & Bennett, Beaufort, Boyce, Lake & Burns, Raleigh, for defendant appellee.

SHARP, Justice.

The form of action alleged in the complaint determines whether a cause is local or transitory. Blevens v. Kitchen Lumber Co., 207 N.C. 144, 176 S.E. 262. Plaintiff's action is to recover monetary damages for the breach of a contract to construct a house. Its purpose is neither to recover real property, to determine an estate or interest in land, nor to recover for injuries to realty. It is not, therefore, a local action within the meaning of G.S. § 1-76(1), and defendant is not entitled to have the cause removed to Carteret County as a matter of right. Casstevens v. Wilkes Telephone Membership Corp., 254 N.C. 746, 120 S.E.2d 94; Lamb v. Staples, 234 N.C. 166, 66 S.E.2d 660; White v. Rankin, 206 N.C. 104, 173 S.E. 282; Warren v. Herrington, 171 N.C. 165, 88 S.E. 139. The test is this: If the judgment to which plaintiff would be entitled upon the allegations of the complaint will affect the title to land, the action is local and must be tried in the county where the land lies unless defendant waives the proper venue; otherwise, the action is transitory and must be tried in the county where one or more of the parties reside at the commencement of the action. G.S. § 1-82. Penland v. Red Hill Methodist Church, 226 N.C. 171, 37 S.E.2d 177; 1 McIntosh, North Carolina Practice and Procedure § 771 (2d Ed., 1956).

The cause which plaintiff has stated was properly brought in Wake, the county of his residence, and defendant cannot force its removal to Carteret County as a matter of right. The judge, aware of the rule, did not order the case removed as a matter of law but attempted to transfer it in his discretion. His Honor obviously concluded that the ends of justice and the convenience of witnesses would require that this action (begun in Wake County for the breach of a contract to build a house) and defendant's action to foreclose a laborer's lien on the same house (instituted in Carteret County as required by G.S. § 1-76) be tried together. Nevertheless, in ordering the removal before defendant had filed his answer, the judge acted prematurely. "[U]ntil 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." Hartford Accident & Indemnity Co. v. Hood, Comr., 225 N.C. 361, 362, 34 S.E.2d 204-205; accord, Lowther v. Wilson, 257 N.C. 484, 126 S.E.2d 50. Furthermore, it is noted that defendant's motion to remove was made as a matter of right under G.S. § 1-76 and G.S. § 1-83(1). It was not addressed to the court's discretion under G.S. § 1-83(2). If so advised, after he has answered the complaint, defendant may yet file a motion to remove the action to Carteret County for the promotion of the ends of justice and the convenience of witnesses. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E.2d 54.

Error and remanded.

LAKE, J., took no part in the consideration or decision of this case.