Gibbs v. Heavlin , 22 N.C. App. 482 ( 1974 )

206 S.E.2d 814 (1974) 22 N.C. App. 482

Robert H. GIBBS and wife Elsie C. Gibbs
v.
Kenneth C. HEAVLIN and wife Helen L. Heavlin.

No. 7425DC526.

Court of Appeals of North Carolina.

July 17, 1974.

Finger & Greene by C. Banks Finger, Boone, for plaintiffs appellees.

Louis H. Smith, Boone, for defendant appellant.

BRITT, Judge.

Defendant's first contention is that the court erred in not granting his motion to dismiss the claims "for lack of jurisdiction of subject matter and misjoinder of causes of action under Rules 16 and 12 and on basis of NCGS 1-75.3 and 1-75.5." He argues that any agreement regarding the house and lot in Blowing Rock was made in Florida; that the house referred to in the second claim alleged was located in Florida; therefore, the North Carolina courts have no jurisdiction.

Plaintiffs' claims are based on alleged contracts and seek the recovery of monetary judgments, therefore, they are transitory and not local. In Brady v. Brady, 161 N.C. 324, 326, 77 S.E. 235, 236 (1913), we find: "Actions are transitory when the transactions on which they are based might take place anywhere, and are local when they could not occur except in some particular place. The distinction exists in the nature of the subject of the injury, and not in the means used or the place at which the cause of action arises. Mason v. Warner, 31 Mo. [508], 510; McLeod v. R. R., 58 Vt. [727], 732, 6 A. 648; Perry v. R. R., 153 N.C. [117], 118, 68 S.E. 1060." See also, Howle v. Express, Inc., 237 N.C. 667, 75 S.E.2d 732 (1953) and Bunting v. Henderson, 220 N.C. 194, 16 S.E.2d 836 (1941). Defendants were personally served with process in this State. We hold that the trial court had jurisdiction.

With respect to the joinder of claims, G.S. § 1A-1, Rule 18, clearly provides that a party asserting a claim for relief may join as many claims, legal or equitable, as he has against an opposing party. We hold that there was no improper joinder of claims in the case at bar.

Defendant's other contention is that the court erred in denying his motions to dismiss pursuant to G.S. § 1A-1, Rule 41, for that the plaintiffs showed no right to relief. We reject this contention.

A motion to dismiss under G.S. § 1A-1, Rule 41(b), does not raise the question of whether the particular findings made by the court are supported by the evidence, but only the question of whether any findings could be made from the evidence which would support a recovery. Pegram-West, Inc. v. Homes, Inc., 12 N. C.App. 519, 184 S.E.2d 65 (1971). While the evidence presented in the instant case was quite conflicting, we hold that there was evidence upon which the court could make findings supporting a recovery on each of plaintiffs' claims.

For the reasons stated, the judgment appealed from is

Affirmed.

CAMPBELL and PARKER, JJ., concur.