Doss v. Nowell

150 S.E.2d 394, 268 N.C. 289, 1966 N.C. LEXIS 1184

• Court: Supreme Court of North Carolina
• Decided: October 12, 1966
• Status: Published

Opinion

Per Curiam.

The finding of the trial judge that neither party is a resident of Catawba County is supported by the evidence and is, therefore, binding upon this Court. Upon that finding, Catawba County is not a proper venue for the trial of this action. G.S. 1-82. If it be assumed that, prior to the institution of this action, the plaintiff ceased to be a resident of Mecklenburg County and became a resident of New Hanover County so that Mecklenburg County is not a proper venue, this would not deprive the Superior Court of Mecklenburg County of jurisdiction to try the action. It is ground only for removal to a proper county, if motion therefor is made in due time and in the proper manner. G.S. 1-83; Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E. 2d 54; McIntosh, North Carolina Practice and Procedure, 2d ed., ,§ 833. In order to deny a motion for removal to a county which is not a proper venue, it is not required that the court determine what is the proper county for trial. See Crain and Denbo, Inc. v. Construction Co., 250 N.C. 106, 108 S.E. 2d 122.

The motion by the plaintiff that the appeal be dismissed under Rule 17(1) as frivolous and taken for the purpose of delay is denied, but upon consideration of the appeal we find no merit therein.

Affirmed.