Trustees of Catawba College v. Fetzer, 162 N.C. 245 (1913)

May 13, 1913 · Supreme Court of North Carolina

162 N.C. 245

TRUSTEES OF CATAWBA COLLEGE v. Mrs. ZETA M. FETZER, Executrix of P. B. FETZER, Deceased.

(Filed 13 May, 1913.)

Removal of Causes — Executors and Administrators — Answer — Waiver — Interpretation of Statutes.

A motion to remove an action brought in the wrong ooiinty against an executor must be formally made at the term of court for filing pleadings and before answer filed; and where answer has been filed and withdrawn for the purpose of the motion, at the proper term, the right to remove will be taken as waived. Revisal, see. 425.

Appeal by defendant from Daniels, J., at February Term, 1913, of Catawba.

Civil action to recover on a note for $1,000, executed by P.'B. Fetzer, testator of defendant, beard on motion-to remove cause.

Tbe action was instituted" in Catawba County, returnable to February Term, 1913, commencing 3 February. Verified complaint was duly filed 11 December, 1912; verified answer to merits filed 5-February, 1913; forilial replication filed 8 February, 1913. Defendant is executrix of tbe obligor of tbe note, duly -qualified and acting as sucli in tbe county of Cabarrus, and, later in tbe term, to wit, on 10 February, having obtained leave to withdraw her answer, made a motion, in writing, to remove tbe cause for trial in said county of Cabarrus. Tbe motion was denied, and defendant excepted and appealed.

George McCorhle, R. R. Moore, and W. A. Self for plaintiff.

L. T. Marts ell for defendant.

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.