Cheek v. Higgins

331 S.E.2d 712 (1985)

Jerry Lee CHEEK v. Annie Laurie Felder HIGGINS.

No. 8418SC1010.

Court of Appeals of North Carolina.

July 16, 1985.

*713 Ottway Burton, Asheboro, for plaintiff-appellant.

Adams, Kleemeier, Hagan, Hannah & Fouts by Joseph W. Moss and David A. Senter, Greensboro, for defendant-appellee.

PARKER, Judge.

Plaintiff assigns as error the trial court's granting of defendant's motion to change venue pursuant to G.S. 1-83 and Rule 12(b)(3) of the N.C. Rules of Civil Procedure.

General Statute 1-83 provides:

If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court. The court may change the place of trial in the following cases: (1) When the county designated for that purpose is not the proper one.

*714 Under applicable case law when the venue where the action was filed is not the proper one, the trial court does not have discretion, but must upon a timely motion and upon appropriate findings transfer the case to the proper venue. If, however, the motion in writing is not made within the time prescribed by statute, defendant waives his right to object to venue. Swift & Co. v. Dan-Cleve Corp., 26 N.C.App. 494, 216 S.E.2d 464 (1975). In this case plaintiff's complaint was filed 11 August 1982. Defendant filed her answer 31 August 1982. Defendant's motion to change venue was not filed until 11 April 1984. The language of the statute is clear that the time for making the written demand is before the time for filing answer expires. Moreover, our Supreme Court, interpreting this statute, has explicitly stated that the defendant who files answer to the merits before raising his objection to venue, waives the right. Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E.2d 54 (1952); See also Miller v. Miller, 38 N.C.App. 95, 247 S.E.2d 278 (1978).

Defendant's motion in the case at bar was not made in apt time. Therefore, we hold that defendant has waived her right and the trial court erred in granting defendant's motion to change venue. Defendant argues that her motion was made as soon as she discovered that plaintiff was not a resident of Guilford County. Defendant cannot, however, prevail on this argument for the reason that the plain language of the statute puts the burden on defendant to conduct an investigation to determine if venue is proper before the time for filing answer expires.

For the foregoing reasons, the 14 May 1984 Order is reversed with direction that the case be transferred from Guilford County to Randolph County for trial. Any purported appeal from the 11 April 1984 Order is dismissed.

Reversed.

ARNOLD and MARTIN, JJ., concur.