Farmers Cooperative Exchange, Inc. v. Trull

120 S.E.2d 438 (1961) 255 N.C. 202

FARMERS COOPERATIVE EXCHANGE, INC.
v.
Maurice TRULL.

No. 462.

Supreme Court of North Carolina.

June 16, 1961.

L. Bruce Gunter, Raleigh, for plaintiff, appellant.

R. B. Templeton, Davis & Brown, by Allen W. Brown, Raleigh, for defendant, appellee.

PARKER, Justice.

The superior court of North Carolina is one court having statewide jurisdiction. Casstevens v. Wilkes Telephone Membership Corp., 254 N.C. 746, 120 S.E.2d 94; Lovegrove v. Lovegrove, 237 N.C. 307, 74 S.E.2d 723; Rhyne v. Lipscombe, 122 N.C. 650, 29 S.E. 57.

Defendant's motion for the removal of the case from Wake County superior court to the superior court of Union County for trial to promote the convenience of witnesses and the ends of justice, made pursuant to the provisions of G.S. § 1-83, subd. 2, presents a question of venue, not jurisdiction, is within the sound discretion of the trial judge, and is not subject to review except for manifest abuse of such discretion. Howard v. Queen City Coach Co., 212 N.C. 201, 193 S.E. 138; McIntosh, N.C. Practice & Procedure, 2nd Ed., Vol. 1, p. 437.

Judge McKinnon in his discretion entered an order allowing defendant's motion for removal at the First October Regular Civil Term 1960 of Wake County superior court. However, the clerk of the superior court of Wake County failed to transmit the record of the case to the superior court of Union County as directed by G.S. § 1-87, nor did the defendant have it transmitted. After a civil term of the superior court of Union County had convened next after the entering of Judge McKinnon's order of removal, plaintiff filed a written motion in the superior court of Wake County to vacate Judge McKinnon's order of removal.

This Court said in Jones v. Brinson, 238 N.C. 506, 78 S.E.2d 334, 339: "In the event the transcript of removal is not filed within the time limited by the court, or within a reasonable time after the order of removal is entered where no time for removal is fixed, the dormant jurisdiction of the court of original venue, on proper notice may be reactivated for exclusive control over the cause." To the same effect see Fisher v. Cid Copper Mining Co., 105 N.C. 123, 10 S.E. 1055. In Cline v. Bryson City Manufacturing Co., 116 N.C. 837, 21 S.E. 791, the same rule of law is stated, though the judge there struck out the order of removal.

Whether or not the dormant jurisdiction of the superior court of Wake County should be reactivated and Judge McKinnon's order of removal stricken out was a matter within the sound discretion of Judge Carr. Judge Carr in his sound discretion denied plaintiff's motion to strike out Judge McKinnon's order of removal and his order is not subject to review as no manifest abuse of discretion on his part is shown or appears. In fact, plaintiff does not contend that Judge Carr abused his discretion.

The order of Judge Carr is

Affirmed.