Chow v. Crowell

190 S.E.2d 647 (1972)

Christopher C. CHOW v. Walter G. CROWELL, and wife, Florence S. Crowell, et al.

No. 7228SC28.

Court of Appeals of North Carolina.

August 23, 1972.

*648 Roberts & Cogburn, by Max O. Cogburn, and Bennett, Kelly & Long by Robert B. Long, Jr., Asheville, for plaintiff appellee.

*649 Williams, Morris & Golding by James N. Golding, Asheville, for defendant appellants.

Uzzell & Dumont by Harry Dumont, Asheville, for defendants appellees.

PARKER, Judge.

Plaintiff being a nonresident and defendants being residents of North Carolina, the proper venue for trial of this action is a county in this State in which "the defendants, or any of them, reside at its commencement." G.S. § 1-82. None of the defendants resided in Buncombe County, in which this action was commenced. Under G.S. § 1-83 each defendant had the right, by written motion made before time for answering expired, to demand that the action be removed to the county of his own residence.

Appellants contend that their motion to remove to Guilford County having been filed before the filing by their codefendants of the motion to remove to Transylvania County, the trial court should have considered their motion first. Then contend that, had the court done so, it would have been required to grant their motion as a matter of right, the case would then have been transferred to Guilford County, which was a "proper county" within our statutes relating to venue, and the subsequently filed motion to remove to Transylvania County would have failed as a matter of law. In this case, however, both motions were made upon the same grounds and as a matter of right, and we find nothing in our established practice or procedure which required the trial court to consider the motions separately and in the order in which they were filed. Moreover, the record before us fails to disclose any timely objection noted by appellants to the action of the trial court in considering the two motions at the same time. Under the circumstances of this case, therefore, we hold that the trial court committed no error in considering the two motions at the same time and that the court was not required to give precedence to one motion or the other because of the order in which they may have been filed, but was necessarily required to exercise discretion in choosing between the two.

We find error, however, in the trial court's order removing this case to Transylvania County, as nothing in this record supports the court's determination that proper venue of this action is in that county. The unverified motion signed by the attorneys for defendants Crowell contained a statement that they were residents of Transylvania County at the time of the institution of this action, but "[t]he unverified motion did not prove the matters alleged therein and is not evidence thereof." North American Acceptance Corp. v. Samuels, 11 N.C.App. 504, 181 S.E.2d 794. No affidavit or other evidence appears in the record to support the unverified motion. On the contrary, the motion filed by appellants and verified by C. A. Anderson states that defendants Crowell were residents of Macon County. The fact that summons was served on defendants Crowell by the Sheriff of Transylvania County did not establish that they were residents of that county.

The order appealed from being unsupported by the record, the same is vacated, and this cause is remanded to the Superior Court of Buncombe County for further proceedings as provided by law.

Vacated and remanded.

MALLARD, C. J., and MORRIS, J., concur.