King v. Buck

203 S.E.2d 643, 21 N.C. App. 221, 1974 N.C. App. LEXIS 1763

• Court: Court of Appeals of North Carolina
• Decided: April 3, 1974
• Docket: No. 7426SC172
• Status: Published

Opinion

PARKER, Judge.

There was no error in the order removing this cause to Wake County. G.S. 1-77 in pertinent part provides:

“G.S. 1-77. Where cause of action arose. — Actions for the following causes must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, in the cases provided by law:

íjt :J; íjt 5J;

“(2) Against a public officer . . . for an act done by him by virtue of his office;... ”

The pleadings establish and appellant concedes that defendant is a public officer and that this action arises from acts done or to be done by him in Wake County by virtue of his office. Thus, G.S. 1-77 (2) applies and the action was properly removed to Wake County.

Appellant points out that the venue provisions of G.S. 1-77 are, by express language of that statute, made “subject to the power of the court to change the place of trial, in the cases provided by law,” and he points to G.S. 1-83 (2) as authorizing the court to change the place of trial “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” We agree with appellant’s contention that the fact that defendant is entitled under G.S. 1-77 to have this case moved to Wake County does not preclude the court from changing the venue from Wake County to another county, in the exercise of sound discretion, for the convenience of witnesses and the promotion of the ends of justice, upon motion properly made under G.S. 1-83. However, the time for such a motion has not arrived. Wiggins v. Trust Co., 232 N.C. 391, 61 S.E. 2d 72.

The order appealed from is

Affirmed.

Judges Britt and Vaughn concur.