Nelms v. Nelms , 250 N.C. 237 ( 1959 )

Bobbitt, J.,

concurring. Plaintiff and defendant are domiciled in North Carolina. Hence, North Carolina has jurisdiction of an action brought by either for absolute divorce. Whether the General Assembly, which certainly had ithe power to do so, has conferred jurisdiction upon the General County Oourt of Wilson County to entertain and try such action is the only question presented. For the reasons stated in the Court’s opinion, I think this question must he answered in the affirmative.

G.S. 7-286, second paragraph, provides: “Motions for the change of venue or removal of oases from the general county courts to the superior courts of counties 'Other than the 'one in which the said court sits may be made and acted upon, and the canses for removal shall be the same as prescribed by law for similar motions in the superior courts.”

In Lovegrove v. Lovegrove, 237 N.C. 307, 74 S.E. 2d 723, the action, brought in the Recorder’s Court of Nash County, was removed by order of the clerk of that court to the Recorder’s Court of Edgecombe County. No statutory provision conferred authority for such order. Hence, subsequent proceedings in the Recorder’s Court of Edgecombe County were declared invalid becanse it had no jurisdiction. Barnhill, J. (later C.J.), stated: “It follows that this cause is still pending in the recorder’s court of Nash County.” He .noted that a remedy as to change of venue was available to the defendant. As I read the opinion, the clear implication -is that the defendant had the right to have the cause removed to the Superior Oourt of Edgecombe County for trial. There was no holding, express or implied, that the Recorder’s Court of Nash County lacked jurisdiction.

A motion by defendant that the court, in its discretion, remove the cause to the Superior Court of Nash County for trial, on the ground the convenience of witnesses and the ends of justice will be promoted thereby, is not precluded by the present decision.