Nelms v. Nelms

108 S.E.2d 529, 250 N.C. 237, 1959 N.C. LEXIS 647

• Court: Supreme Court of North Carolina
• Decided: May 6, 1959
• Docket: 240
• Status: Published

Opinions

WiNBORNE, C. J.

The General Assembly of North Carolina has declared (1) specifically —that the General County Oourt in W-ilsofi County shall have jurisdiction to try -(actions for divorce, according to ¡the oourse and practice o-f the .Superior Oourt in such action. P. L. 1931, Chap. 61, Sec. 1 (h); (2) expressly — that the jurisdiction of'the General County Court -in civil actions shall be concurrent with the Superior Oourt in all actions -and proceedings for divorce and alimdhy, or either, G.S. 7-279 (6); (3) that in. all proceedings for divorce-,the summons shall -be returnable to the 'count of the county in which either the -plaintiff or -defendant resides, G.S. 50-3 Venue; and (4) that if the county designated for the purpose of 'summons .and complaint is not the proper one, the action may be tried therein unless .the defendant, before the time for answering expires, demands in writing that the trial be conducted in the proper county, -and the place of trial is thereupon .changed by consent of the parties, or by order of the court. G.S. 1-83. "i

And in respect ,to tibe statute G.S. 50-3, decisions oí this Count hold that its provisions are not jurisdictional, but relate to venue, McLean v. McLean, 233 N.C. 139, 63 S.E. 2d 138, and may be waived.

Furthermore, it is ¡provided in G.S. 1-125 that “¡the defendant must appear -and demur or .answer within thirty (30') days after .the service of summons’upon him, .or within thirty (30) days after the final determination of a motion to remove as ¡a matter of ¡right * * * .” In the light'of the .provisions of this statute, it would seem that in a case where defendant claims right of removal .as a matter .of right the first move of defendant is motion for change of venue— and that .upon failure to so move .the right is waived.

And if an action for divorce be instituted in any other county in the State the action may be tried therein unless the defendant demands in writing that'the trial be had in the proper county. Smith v. Smith, 226 N.C. 506, 39 S.E. 2d 391, citing Davis v. Davis, 179 N.C. 185, 102 S.E. 270.

Indeed .in McLean v. McLean, supra, this Court in opinion by Devin, J., later C. J., had this to say: “The mere fact of instituting suit for divorce in a county other than that of plaintiff’s residence would not be regarded 'as .affecting the jurisdiction of the court over the action on proper service, but rather as affecting the question of venue.”

Moreover, in Waters v. McBee, 244 N.C. 540, 94 S.E. 2d 640, Rodman, J., interpreting for the Court the phrase “shall have jurisdiction over the entire county in which said court may be established” .appearing in G.S. 7-265, made this pertinent observation: “Had it been the intention of the Legislature to limit the jurisdiction of the General County Court to causes of action arising in the county, it would have been simple and appropriate for it to have inserted such a provision in S. 14 of the Act, prescribing the jurisdiction of the court. G. S. 7-279. No .such limitation appears.” To the contrary the General Assembly has made express provisions for change of venue in 'appropriate cases. G.S. 7-286.

In the- light of the provisions of these statutes applied to the facts appearing upon .the face of the record on this appeal, the Court is of opinion -and holds that the judgment from which appeal is taken is proper, and should be affirmed.

Affirmed.