Smith v. . Patterson

74 S.E. 923, 159 N.C. 138, 1912 N.C. LEXIS 244

• Court: Supreme Court of North Carolina
• Decided: May 15, 1912
• Status: Published

Opinion

Hoke, J.,

after stating the case: The validity of his Honor’s ruling is dependent upon the proper construction of section' 424, Revisal, in terms as follows: “In all other cases the action shall be tried in the county in which the plaintiffs or the defendants, or any of them, shall reside at the commencement of the action; or if none of the defendants shall reside in the State, then in the county in which the plaintiffs, or any of them, shall reside; and if none of the parties shall reside within the State, then the same may be tried in any county which the plaintiff shall designate in his summons and complaint, subject, however, to the power of the court to change the place of trial in the cases provided by statute: Provided, in all actions against railroads the action shall be tried either in the county where the cause of action arose, or in some county where the plaintiff 'resided at the time the cause of action arose, or in some_county adjoining the county in 'which the cause of action arose, subject, however, to the power of the court to change the place of trial in the cases provided by statute.” Authoritative interpretations of this and legislation of similar • import elsewhere would seem to favor the position that in respect to actions instituted by an administrator and coming within the' effect of the proviso, the terms appearing therein, “where plaintiff resided at the time the cause of action arose,” have reference to the residence of the individual holding the office and not to the official residence or place where he may have qualified. Whitford v. Insurance Co., 156 N. C., 42; Roberson v. Lumber Co., 153 N. C., 120; R. R. v. Stith, 120 Ky., 237; Turner v. R. R., 110 Ky., 819. Without present decision of this question, however,' we are all of opinion that the proviso to the section should be construed and held to apply to cases where a railroad company alone is defendant, and that the venue in actions where there are other parties defendant should come within the body of the act. This is not only the primary and natural meaning of the language used, but without express requirement it would be unreasonable to hold that the rights of all other litigants should be made subservient to a particular class, and this without regard to the convenience of the parties or the amount of the interest involved.

On authority, therefore, and owing to the joinder of the individual defendant Patterson, the action is properly brought in Mecklenburg County. Whitford v. Insurance Co., supra.

There is no error, and the judgment below is

Affirmed.