Casstevens v. Wilkes Telephone Membership Corp. , 254 N.C. 746 ( 1961 )

120 S.E.2d 94 (1961) 254 N.C. 746

W. C. CASSTEVENS, D/B/A W. C. Casstevens Company,
v.
WILKES TELEPHONE MEMBERSHIP CORPORATION.

No. 596.

Supreme Court of North Carolina.

May 24, 1961.

Douglas, Ravenel, Josey & Hardy and C. Kitchin Josey, Greensboro, for plaintiff-appellee.

W. G. Mitchell, North Wilkesboro, and Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant-appellant.

PARKER, Justice.

G.S. § 1-76, subsections 1 and 3, read: "Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by law: 1. Recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property * * *. 3. Foreclosure of a mortgage of real property."

Defendant's written motion for change of venue as a matter of right, by virtue of G.S. § 1-76, subsections 1 and 3, having been made before the time for answering expired, was made in apt time. G.S. § 1-83; Carolina Mortgage Co. v. Long, 205 N.C. 533, 172 S.E. 209.

"As it relates to the Superior Court of North Carolina, venue refers to the county in which the action is to be tried." Jones v. Brinson, 238 N.C. 506, 78 S.E.2d 334, 337.

The venue of an action as fixed by statute is not jurisdictional, and may be waived by any party or changed by consent of the parties, express or implied. G.S. § 1-83; Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E.2d 54; Jones v. Brinson, supra.

The nature and purpose of plaintiff's action is to be determined by the allegations of his complaint. Carolina Mortgage Co. v. Long, supra. According to the allegations in plaintiff's complaint, and his amendment thereto, he is not only seeking a money recovery from defendant, but is also seeking to enforce his laborers' and materialmen's lien by a sale of defendant's property in Wilkes County.

Penland v. Red Hill Methodist Church, 226 N.C. 171, 37 S.E.2d 177, was a civil action instituted in Yancey County, where plaintiff resides, to recover an alleged balance due plaintiff on a contract for the construction of a church building for defendant in Mitchell County, and for an order directing the sale of the church property to satisfy the same which is secured by a laborers' and materialmen's lien duly filed in Mitchell County. In apt time defendant made a motion before the clerk of the superior court of Yancey County to remove the case to Mitchell County for trial by virtue of G.S. § 1-76. The clerk granted the motion, and upon appeal the judge entered an order that Mitchell County was the proper venue for the trial of the action, and entered an order accordingly. Upon appeal the order of the lower court was affirmed. This Court said: "And we see no essential difference insofar as an interest in real property is involved, in an action to foreclose a mortgage, a lien created by contract, and in one to foreclose a specific statutory lien on real property."

Atlantic Coast Line R. R. Co. v. Thrower, 213 N.C. 637, 197 S.E. 197, 198, was a civil action instituted in Cumberland County by plaintiff, which had its principal place of business in Wilmington, New Hanover County, North Carolina, to recover of defendant, a resident of Mecklenburg County, the amount of an unpaid cheque. In apt time defendant duly filed a written motion to remove the action for trial to Mecklenburg County. Thereupon, plaintiff filed a motion that the Court retain the action in Cumberland County for that: "2. The convenience of witnesses and the ends of justice would be promoted by retaining this action for the trial in this court, for the reason that": and the motion then sets out pertinent facts in support thereof. From an order denying defendant's motion for a change of venue, and in the court's discretion retaining the case for trial in the superior court of Cumberland County for the convenience of witnesses and to promote the ends of justice, defendant appealed. This Court reversed the order of the trial judge. In its opinion it said: "Speaking to the subject in Roberts & Hoge v. Moore, 185 N.C. 254, 116 S.E. 728, Hoke, J., says (page 729): ``While it is clear from a perusal of section 470 (now G.S. § 1-83) that this question of venue is not in the first instance jurisdictional, and may be waived by the parties, and the decisions construing the section so hold, these decisions are also to the effect that, where the motion to remove is made in writing and in apt time, the question of removal then becomes a matter of substantial right, and the court of original venue is without power to proceed further in essential matters until the right of removal is considered and passed upon."

In Huntley v. Southeastern Express Co., 191 N.C. 696, 132 S.E. 786, 787, defendant, in apt time, filed its petition and bond for removal of the action to federal district court for trial on the ground of diverse citizenship. Upon the hearing of the petition before the clerk, plaintiff was allowed to reduce the amount claimed in his complaint from $10,000 to $2,999, and the petition was denied. Defendant appealed to the judge, and on the hearing plaintiff was allowed, over defendant's objection, to take a voluntary nonsuit. Defendant appealed. This Court said: "The cause being a proper one for removal, and the petition and bond having been filed in apt time, it was error for the clerk or the judge of the State Court to enter any order therein, affecting the rights of the parties save the order of removal. * * * When a sufficient cause for removal is made out in the state court, the rightful jurisdiction of that court comes to an end, and no further proceedings can properly be had therein unless and until its jurisdiction has been restored." We refer to this case for the sole purpose of illustrating orders which substantially affect the rights of the parties. See also Mason v. Southern R. R. Co., 214 N.C. 21, 197 S.E. 566.

In the case at bar plaintiff's motion to amend his complaint by deleting therefrom paragraphs 22 and 23 and his third prayer for relief followed defendant's motion to remove the case for trial to Wilkes County as a matter of right. The judge's order allowing plaintiff in his discretion to amend his complaint by deleting therefrom paragraphs 22 and 23 and his third prayer for relief substantially affected the rights of the parties, before defendant's motion for removal as a matter of right was considered and passed upon. In allowing such amendment the judge committed error, unless defendant had waived his right to have his motion for removal as a matter of right considered and passed upon first, or had consented to such procedure. We are concerned here with venue, not jurisdiction. The superior court is one court having statewide jurisdiction. Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57; Lovegrove v. Lovegrove, 237 N.C. 307, 74 S.E.2d 723.

Judge Gwyn found "as a fact from argument of counsel, facts admitted by counsel, and matters of record, that the plaintiff's motion to amend the complaint and the defendant's motion to remove as a matter of right were both pending before the clerk of superior court regardless of the order in which the said motions were filed; and both parties had agreed that the two motions should be considered at the same time." Judge Gwyn's opinion, as expressed in his order, that the two motions should be considered simultaneously was error, but defendant consented that he should so consider the two motions.

Defendant did not except to these findings of fact. Defendant has one exception and one assignment of error, and that is: "That the court below erred in entering and signing the order as appears in the record for that the defendant, as a matter of right, was entitled to have this case removed to Wilkes County for the purpose of trial."

In Carolina Mortgage Co. v. Long, 206 N.C. 477, 174 S.E. 312, plaintiff's counsel was held entitled to notice of defendant's application for judgment on the certificate of the Supreme Court reversing judgment of the lower court refusing defendant's motion for change of venue as a matter of right, so that nonsuit might be entered if plaintiff so desired.

In our opinion, when defendant agreed before Judge Gwyn that the two motions should be considered at the same time, he waived his right to have his motion for removal as a matter of right considered and passed upon first. G.S. § 1-163 vests in the judge presiding almost unlimited authority to permit amendments, either before or after judgment. Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. Pursuant to the agreement of plaintiff and defendant that the two motions should be considered at the same time, Judge Gwyn, in his discretion, entered an order allowing plaintiff to amend his complaint, and to strike out and delete any claim for a specific lien on defendant's property in Wilkes County, and then denied defendant's motion for removal. Such a discretionary ruling on a motion to amend the complaint is not reviewable on appeal, unless there has been a manifest abuse of discretion, and no such abuse of discretion appears here. Sawyer v. Cowell, 241 N.C. 681, 86 S.E.2d 431. When Judge Gwyn allowed plaintiff's motion to amend, the basis for defendant's motion to remove the case to Wilkes County for trial as a matter of right was annihilated, and was annihilated by defendant's agreement before Judge Gwyn, for the reason that G.S. § 1-76, subsections 1 and 3, no longer had any application.

The order of Judge Gwyn is

Affirmed.