Lassiter v. Norfolk & Carolina Railroad , 126 N.C. 507 ( 1900 )

The Code, section 195, provides that if an action is not (508) brought "in the proper county, the action may, not withstanding, be tried therein unless the defendant, before the time of answering expires, demands in writing that the trial be had in the proper county." This gives the defendant a right to remove in such cases upon written motion in apt time (Manufacturing Co. v. Brower, 105 N.C. 440), otherwise the objection is waived. But the same section further on gives the court the discretion: "It may change the place of trial" in three cases named in as many subsections, the second of which is "When the convenience of witnesses and the ends of justice would be promoted by the change." The court in its discretion granted the removal upon that ground, in this case, and such action is not reviewable. The discretion of the court to remove is not restricted to the expiration of the time of answering, nor to cases in which the action is brought in the wrong county, as is the right of the defendant to remove.

The further objection that the cause was removed to a county in another judicial district is without ground in the statute, or decisions to support it. The appeal was not premature (Roberts v. Connor, 125 N.C. 45), but there was

No error.

Cited: Staton v. R. R., 147 N.C. 442; Oettinger v. Live Stock Co.,170 N.C. 153; Craven v. Munger, ib., 425.

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