M & J Leasing Corp. v. Habegger

334 S.E.2d 804, 77 N.C. App. 235, 1985 N.C. App. LEXIS 4033

• Court: Court of Appeals of North Carolina
• Decided: October 1, 1985
• Docket: No. 8423SC1361
• Status: Published

Opinion

PHILLIPS, Judge.

Defendant contends that under the terms of both G.S. 1-76.1 and G.S. 1-76(4) the trial court was required to transfer this case to Davie County, where he resides and the leased articles are situated. We disagree and affirm the judgment appealed from.

Subject to the power of the court to change the place of trial as provided by law, G.S. 1-76.1 provides that:

[AJctions to recover a deficiency, which remains owing on a debt after secured personal property has been sold to partially satisfy the debt, must be brought in the county in which the debtor or debtor’s agent resides or in the county where the loan was negotiated. (Emphasis added.)

This statute has no application to this case because the personal property involved has not yet been sold and the action is not “to recover a deficiency which remains owing on a debt.”

Subject to the power of the court to change the place of trial as the law authorizes, G.S. 1-76(4) provides that actions for the recovery of personal property must be tried in the county in which the subject of the action or some part thereof is situated “when the recovery of the property itself is the sole or primary relief demanded'' (Emphasis supplied.) This statute does not govern the case either because the recovery of the leased property is not “the sole or primary relief demanded.” The primary relief sought in this case is the recovery of the money owed; the possession of the leased equipment through claim and delivery is sought only as an ancillary remedy.

Affirmed.

Judges Wells and Whichard concur.