House Chevrolet Co. v. Cahoon, 223 N.C. 375 (1943)

Sept. 22, 1943 · Supreme Court of North Carolina

223 N.C. 375

HOUSE CHEVROLET COMPANY, INC., v. EDWARD P. CAHOON and MURIAL CAHOON, and W. A. BEALS.

(Filed 22 September, 1943.)

1. Venue § 2a—

If an action be one in which the recovery of personal property is not the sole or chief relief demanded, it is not removable to the county in which the personal property is located; but, if the recovery of specific personal property is the principal relief sought, the action is removable to the county where the property is situated. C. S., 463 (4).

2. Same—

. Where plaintiff brings an action in the county of his residence, based upon a note secured by a chattel mortgage on an automobile, against three defendants, two of whom executed the said note and mortgage and are residents of another county, and the third defendant, who has possession of the car, is a resident of a third county, the chief relief sought is the collection of the debt and a claim and delivery for the car is only ancillary, so that the action should not be removed.

Appeal by defendant Beals from Dixon, Special Judge, at April Term, 1943, Of WASHINGTON.

This is an action instituted in Washington County by the plaintiff, the House Chevrolet Company, to collect $275.00, with interest from 3 January, 1940, from the defendants Edward P. Cahoon and Murial Cahoon, alleged to be due on a note executed by said defendants to said plaintiff, wherein the ancillary remedy of claim and delivery was invoked to recover the possession of a certain Chevrolet automobile upon which said defendants Cahoon had executed a chattel mortgage to the plaintiff to secure the payment of the note sued on, that said automobile might be sold and so much of the proceeds of such sale as might be necessary applied to the payment of said note. At the time of the institution of this action in Washington County the plaintiff had its principal office in that county, and the automobile was in the possession of the defendant Beals in Pasquotank County, and the defendants Cahoon were residents of Tyrrell County.

On 9 July, 1941, summons was issued by the clerk of Washington County to the sheriff of Pasquotank County against the defendant Beals, which summons was accompanied by the order in the claim and delivery proceeding directing the sheriff of Pasquotank to seize the automobile and deliver tbe same to tbe plaintiff. Defendant Beals filed a replevy bond and retained tbe possession of tbe automobile.

On 12 July, 1941, summons was issued by tbe clerk of Washington County to tbe sheriff of Tyrrell County for tbe defendants Edward P. Gaboon and Murial Gaboon, which was duly served on 14 July, 1941. There accompanied tbe summons, and was served therewith, a copy of an order made by tbe clerk of Washington County extending tbe time for filing complaint until 28 July, 1941, based upon application of tbe plaintiff wherein it is stated that “tbe nature and purpose of this action are ... to obtain immediate possession of tbe property described in tbe affidavit hereto attached to satisfy a debt upon which property tbe plaintiff is tbe bolder of a chattel mortgage which said debt thereby secured is past due and unpaid.”

On 25 July, 1941, tbe plaintiff filed tbe only complaint filed in tbe action in which it alleged: That tbe plaintiff was a corporation with its principal place of business in Washington County; that tbe defendants Gaboon became indebted to tbe plaintiff on 3 January, 1940, in tbe sum of $275.00 and executed and delivered a promissory note for said amount on said date; that said note was secured by a chattel mortgage upon a Chevrolet automobile; that no part of said note bad been paid, although past due, and that tbe plaintiff is entitled to recover of tbe defendants Gaboon tbe full amount thereof; that tbe process in claim and delivery bad been issued and tbe said automobile described in tbe chattel mortgage was in the possession of tbe defendant Beals in Pasquotank County and bad been seized by tbe sheriff of that county; that tbe plaintiff was entitled to have said automobile sold and so much of tbe proceeds of such sale as may be necessary therefor applied to tbe payment of said note; and finally prayed that it recover of tbe defendants Gaboon tbe full amount of tbe note, with interest, and that it be adjudged that tbe plaintiff is entitled to tbe possession of tbe automobile, to have tbe same sold, and tbe debt owed to it paid from tbe proceeds of such sale.

Tbe defendant W. A. Beals lodged motion before tbe clerk of Washington County to have tbe cause transferred to Pasquotank County, for that be was a resident of that county and tbe automobile was in bis possession in that county. Tbe clerk denied tbe motion and tbe defendant Beals excepted and appealed to tbe judge at term.

Tbe cause came on for bearing on appeal before Dixon, J., at term and be found as a fact, inter alia, “that all of said process (tbe two summonses and ancillary proceeding in claim and delivery), was actually issued, and so intended to be issued, in tbe same cause,” and “ordered as follows: That tbe summons and ancillary proceeding in claim and delivery issued for and served upon W. A. Beals, and tbe summons for and served upon tbe defendants, Edward P. Caboon and Murial Caboon, are and were in, and intended to be in, tbe same action; tbat to sucb ■extent as there was severance between said process, if any, tbe same is abolished and is in all respects consolidated into one action”; and denied tbe motion of tbe defendant Beals to remove tbe cause to Pasquotank County.

To tbe order of tbe court denying bis motion to remove tbe cause to Pasquotank County tbe defendant Beals objected, excepted and appealed to tbe Supreme Court.

Carl L. Bailey for plaintiff, appellee.

M. B. Simpson for defendant Beals, appellant.

Schehok, J.

Tbe question posed by this appeal is as stated in appellant’s brief, namely, “Did tbe court commit error in refusing to remove this case from Washington County to Pasquotank County?”

C. S., 463 (4), provides tbat actions for tbe recovery of personal property must be tried in tbe county in which the subject of tbe action or some part thereof is situated.

If tbe action be one in which tbe recovery of personal property is not tbe sole or chief relief demanded it is not removable to tbe county in which personal property is located, Bowen Piano Co. v. Newell, 177 N. C., 533, 98 S. E., 774; but, on tbe other band, if tbe action be one in which tbe recovery of specific personal property is tbe principal relief sought, tbe action is removable to tbe county where tbe property is situated. Fairley Bros. v. Abernathy, 190 N. C., 494, 130 S. E., 184.

Therefore, tbe answer to tbe question posed lies in tbe determination of whether tbe sole or chief relief demanded in tbe case at bar is tbe recovery of personal property. Tbe appellant Beals contends tbat as to him at least it is, in fact be contends'as to him it is tbe only relief sought; while tbe appellee, tbe House Chevrolet -Company, contends tbat tbe action is a single action against all of tbe defendants and, when considered as a whole, tbe principal relief sought and demanded is tbe payment of tbe debt due by tbe defendants Caboon to it, and tbe seizure of tbe personal property upon which they executed a chattel mortgage to secure tbe debt was but ancillary to tbe principal purpose of tbe action.

We are of tbe opinion, and so bold, tbat tbe contention of tbe appellee, tbe plaintiff, is correct, tbat is, tbat tbe chief relief sought is tbe collection of tbe debt, and tbat tbe subjection of tbe automobile to sale for sucb purpose is but incidental.

Tbe right of tbe plaintiff to recover tbe amount of tbe debt sued for is in no wise based upon tbe seizure and sale of tbe automobile. In this respect, as in others, the ease at bar is distinguishable from Marshburn v. Purifoy, 222 N. C., 219, 22 S. E. (2d), 431.

The contention of the defendant that there were two actions pending: one against the defendant Beals and one against the defendants Cahoon, is untenable for the reason that the court below both found as a fact and adjudicated as a matter of law that the summons and ancillary proceeding in claim and delivery issued for and served upon W. A. Beals and the summons for and served upon defendants Edward P. Cahoon and Murial Cahoon were in, and intended to be in, the same action. The record furnished sufficient evidence upon which to base this finding of fact by the court below and we are therefore bound thereby, and such finding of fact supports the conclusion of law which is based thereupon.

The judgment below is

Affirmed.