Trustees of Catawba College v. Fetzer

Supreme Court of North Carolina

Trustees of Catawba College v. Fetzer

78 S.E. 152, 162 N.C. 245, 1913 N.C. LEXIS 339

CourtSupreme Court of North Carolina

DecidedMay 13, 1913

StatusPublished

Cited by4 cases

This text of 78 S.E. 152 (Trustees of Catawba College v. Fetzer) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Trustees of Catawba College v. Fetzer, 78 S.E. 152, 162 N.C. 245, 1913 N.C. LEXIS 339 (N.C. 1913).

Pincite

Opinion

Hoke, J.

Our statute, Revisal, sec. 425, provides that, “if tbe county designated in tbe summons and complaint be not the proper county, tbe action may, notwithstanding, be held there, unless tbe defendant, before tbe time for answering expires, demands, in writing, that the trial be held in tbe proper county.” Construing tbe section, our Court bolds that, “in order for a litigant to avail himself of tbe right, conferred by tbe statute, tbe motion to remove must be formally made and in apt time,” and further, that, although a defendant might have answered at any time during tbe term, bis time to answer has expired, within tbe meaning of tbe law, whenever be has filed a formal answer to the merits. County Board v. State Board, 106 N. C., 82; McMim v. Hamilton, 77 Mo., 300. If it be conceded that a right of removal exists in tbe present case, tbe defendant, having filed formal answer, must- be taken to have waived bis privilege of removal.

The authorities are decisive against tbe defendant’s position, and tbe judgment of tbe Superior Court, denying tbe motion, is'

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Hoke, J.

Our statute, Revisal, sec. 425, provides that, “if tbe county designated in tbe summons and complaint be not the proper county, tbe action may, notwithstanding, be held there, unless tbe defendant, before tbe time for answering expires, demands, in writing, that the trial be held in tbe proper county.” Construing tbe section, our Court bolds that, “in order for a litigant to avail himself of tbe right, conferred by tbe statute, tbe motion to remove must be formally made and in apt time,” and further, that, although a defendant might have answered at any time during tbe term, bis time to answer has expired, within tbe meaning of tbe law, whenever be has filed a formal answer to the merits. County Board v. State Board, 106 N. C., 82; McMim v. Hamilton, 77 Mo., 300. If it be conceded that a right of removal exists in tbe present case, tbe defendant, having filed formal answer, must- be taken to have waived bis privilege of removal.

The authorities are decisive against tbe defendant’s position, and tbe judgment of tbe Superior Court, denying tbe motion, is'

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

78 S.E. 152, 162 N.C. 245, 1913 N.C. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trustees-of-catawba-college-v-fetzer-nc-1913.

Opinion

Related

Cite This Page — Counsel Stack