Falls of Neuse Manufacturing Co. v. Brower , 105 N.C. 440 ( 1890 )

Davis, J.

after stating the facts: By §190 of The Code, actions “ for the 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; * * * for the foreclosure of a mortgage of real property,” * * * 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 cases provided,” in The Code

By §195 it is provided that: “If the county designated for that purpose in the summons and complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time of answering expires, demands, in writing, that the trial be had in the proper county, and the' place of trial be thereupon changed by consent of parties, or by order of the Court.” It is also provided in said section that “the Court may change the place of trial in the following cases:

“1. When the county designated for that purpose is not the proper county.

“ 2. When the convenience of witnesses and the ends of justice would be promoted by the change.

“3. When the Judge shall have been, at any time, interested as party or counsel.”

The question of removal, when the action is not brought in the proper county, is not one of discretion, but “may” means shall or must, as it is construed in every act imposing a duty. Pelletier v. Saunders, 67 N. C., 262; Jones v. Statesville, 97 N. C., 86, and cases there cited.

In New York they have a statute similar to ours, and a similar construction has been put upon the word “may,” and it is held that the removal, when the action is. not brought in the proper county, “ is a matter of right.” Green’s Pleading and Practice; under The Code, §§ 624 and 625, and the cases there cited. The Judge may determine “ when the convenience of witnesses and the ends of justice would be promoted by the change,” and his determination of those questions would be conclusive, ordinarily, but his discretion is a legal, and not an arbitrary one, even in those cases. He determines whether the grounds for removal exist, and his discretion in this is notreviewable; but when the action with reference “to the subject-matter” is not brought in the proper count}*-, he must, if the demand be made in writing, and before the time of answering expires, “ change the place of trial” to the proper county. The chief, and, so far as Buxton is concerned, the only purposes of this action are to compel J. C. Buxton, the trustee, to sell lands in the county of Surry, and to order Brower to convey the Buck Shoals lands to the Brower Manufacturing Company with relinquishment of the rights of dower by his wife, or, if she refuse to do so, then to have its value ascertained and charged to Brower. Neither Buxton nor Mrs. Brower are in any way parties to the co-partnership styled the Brower Manufacturing Company, and, as to them, the action is purely local, and the place of trial, clearly, under section 190 of The Code, is in the county of Surry; and though there are demands for a dissolution of the co-partnership, and an account of its assets and liabilities, and for the appointment of a receiver, yet all the- property in controversy is situated in Surry County, and the action is one, substantially, to settle rights relating to, and have a foreclosure by sale of, real estate in Surry County, and the receiver, if one shall be appointed, will be charged with duties purely local; and there was error in refusing to make the order of removal. Fraley v. March, 68 N. C., 160; Jones v. Statesville, supra.

Error.