State ex rel. Cloman v. Staton, 78 N.C. 235 (1878)

Jan. 1878 · Supreme Court of North Carolina
78 N.C. 235

*State on relation of JOHN B. CLOMAN v. ARCHIBALD STATON and others.

Praetiee — Guardian Bond — Removal of Action Brought in Improper' County.

1. A guardian bond is an offlcialbond within the meaning of 0. 0. P. § 65, (a).

2. An action upon a guardian bond, brought in a County other than the one wherein the bond was given, is triable in such County un- - less the defendant moves to remove the action to- the proper County-

8. In such case a motion by the defendant to dismiss the action should, be treated as a motion to remove.

(Stanly v. Mason, 69 N. C. 1; Steele v. Commissioners of Rutherford 70 N. C. 187 ; Jones v. Commissioners of Bladen, 69 N. C. 412, cited distinguished and approved.) ,

- Civil Action tried at Eall Term, 1877, of Edgecombe Superior Court, before Cannon, J.

' This was an action upon a guardian bond executed by the-defendants. Upon return of the summons the defendants-■ moved to dismiss the action, for that,/the bond and returns-of the guardian were made in the C'hnty of Martin, where" the guardian qualified and residedMand insisted that the action should have been brougb/f, in Martin instead of' Edgecombe. The plaintiff resisted' the motion, contending that the plaintiff being a resident of Edgecombe, the venue-was properly laid; and that ft most the action could only be removed to Martin for t n' 1 if tLq defendants should move for a removal. The Court iheing of opinion with defendants, dismissed the action, a\ntt thereupon the plaintiff” to Martin for trial, which-was refused, and the plaintiff appealed.

*236 Messrs. Geo. Howard„ Gilliam £ Gatling, and J. L. Bridgers, -Jr., for plaintiff.

Mr. Jas. E. Moore, for defendants.

Reade, J.

There is no doubt that Edgecombe, where the plaintiff lived, was not the proper County, and that Martin where the defendant lived, aod gave his guardian bond, was the proper County in which to try the suit upon the guardian bond. C. C. P. § 68 (a); Stanly v. Mason, 69 N. C. 1; Steele v. Commissioners of Rutherford, 70 N. C. 137. A guardian bond is an “ official bond ” within the meaning of the .statute.

In the cases heretofore before the Court, the main question was as to the proper County, but in this case the question is ■also made as to the time and manner of raising the question, and the party which is to raise it.

It seems that upon the return of the summons to the wrong County, the right of the defendant is “ to demand that the trial be had in the proper County.” If he does not so demand, then the action may go on and be tried in the wrong County. C. C. P. § 69.

The defendant did not move to “ remove to the proper County,” but his motion was to dismiss the action so that it could not be tried in either County. Whereás the statute .says that it may be tried in the wrong County to which it is brought unless the defendant will move to “ remove to - the proper County.”

It is true that in the eases cited, the defendant’s motion was to dismiss, as in this case, and they were dismissed. But the point was not made that the proper motion was to ■“ z’emove ” and not to dismiss.

In Jones v. Commissioners of Bladen, 69 N. C. 412, an erroneous report of the case puts the Court in the fault of -overlooking a point in the case. The report says that there ■was a motion below not only to dismiss but to remove, and *237the counsel’s brief says the same thing, while in the opinion of the Court it is stated that the motion to dismiss was the only point. I find in looking into the original papers that the opinion of the Court was right. The record shows: that the only motion was’to dismiss, and the Judge’s ease states' the same.

The object in those cases seemed to be to determine only the question as to which was the proper County. But here the point was raised and insisted on by the plaintiff that if Edgecombe was not the proper County, and Martin was,, then that it ought to be removed to Martin. And that distinguishes this case from the others.

The plaintiff brought his action in Edgecombe, where he-was willing to try it, and where it was triable, unless the' defendant should demand that it should be tried in Martin. He did not demand that it should be tried in Martin, but objected to its being tried at all, and His Honor dismissed it. In this there was error. Ills Honor ought to have treated it as"a motion to remove, and removed it accordingly.

The objection that the plaintiff did not move in apt time, i. e., not until after the order dismissing the action, has no-force in it; for the reason that the plaintiff was not obliged, to moveffor removal at all. It was for the defendant to> make that^motion, and upon his failure to do so, the case might have been tried in Edgecombe. Or under sub-division (1) of § 69 C. C. P., the Court might have removed the case upon the suggestion of either party, or probably mere» motil.

There is error. This will be certified, <fcc.

Per CuriaM. Judgment reversed..