Opinion
Filed 6 May, 1959.
1. Courts 14 — The General County Court of Wilson County is given statutory jurisdiction of actions for divorce and alimony concurrent with that of the Superior Court. G.S. 7-279 (6).
2. Divorce and Alimony 6 — The statutory provision that in an action for divorce the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides, relates to venue and is not jurisdictional. G.S. 50-3.
3. Same: Courts 14: Venue 3 — Motion for change of venue was a matter of right must be made in writing within thirty days after service of summons, G.S. 1-125, and where, in an action for divorce instituted in a general county court of a county of which neither of the parties is a resident, defendant demurs to the complaint on the ground of want of jurisdiction but does not move for change of venue until after the expiration of thirty days from the service of summons, change of venue was a matter of right is waived. G.S. 1-83.
APPEAL by defendant from Fountain, S. J., at September-October 1958 Civil Term of WILSON.
Finch Narron for plaintiff, appellee.
Hooks Britt for defendant, appellant.
BOBBITT, J., concurring.
PARKER, J., dissenting.
HIGGINS AND MOORE, JJ., concur in dissent.
Civil action to dissolve absolutely the bonds of matrimony existing between the plaintiff and the defendant, on the grounds of two years' separation.
These facts are not controverted:
(I) That on 13 March, 1958, plaintiff, a resident of Pitt County, instituted this action and filed complaint therein in the General County Court of Wilson County against defendant, a resident of Nash County, all in North Carolina;
(II) That summons and complaint were served on defendant on 14 March, 1958;
(III) That on 11 April, 1958, in said General County Court, defendant demurred to the complaint filed in this action, and "moves for a dismissal" for that (1) Dissolution by divorce of the marriage between plaintiff and defendant is the subject of this action; (2) It appears upon the face of the complaint that plaintiff is a resident of Pitt County and defendant a resident of Nash County, and that neither is a resident of Wilson County; and (3) This court has no jurisdiction of the subject matter of this action.
(IV) That on 9 May, 1958, the Judge of said General County Court, after hearing thereon, overruled the demurrer so filed by defendant and so adjudged. And, on same day, defendant excepted thereto and appealed to Superior Court of Wilson County, and on such appeal defendant assigned as error the rendering of the judgment set out in the record, and the court, being of opinion that the demurrer should be overruled, so adjudged, and remanded the cause to the General County Court of Wilson County for further orders. Defendant objected and excepted.
(V) Thereafter on 21 June, 1958, in the said General County Court defendant moved the court that the cause be removed to Nash County for trial for the reason that Wilson County is not the proper county for the trial of this action, and Nash County is a proper county, and in support of such motion showed to the court:
"1. That plaintiff is not a resident of Wilson County, North Carolina, and alleged in his verified complaint that he is a resident of Pitt County, North Carolina.
"2. That the defendant is a resident of Nash County, North Carolina, as alleged in the complaint.
"3. That this action seeks to dissolve by divorce the marriage of plaintiff and defendant and such marriage is the subject of this action. That Wilson County is not the proper county for the institution and prosecution of this action, that Nash County is a proper one and the defendant demands that this action be transferred to Nash County for trial as provided by law in such cases."
(VI) That the clerk of the said General County Court, upon hearing thereon, being of opinion that the motion to remove should be denied, entered order on 21 August, 1958, that the motion be denied.
(VII) That on appeal from the order of the clerk, the Judge of said General County Court found facts substantially as hereinabove related, and further that defendant has filed no answer and, thereupon concluded (paragraph 7) that the time for answering for the purposes of the motion for change of venue had expired; and being of opinion that defendant had waived her right to have the cause removed to Nash County, entered an order dated 15 September, 1958, affirming the said order of the clerk, and denying defendant's motion.
Defendant excepted thereto and appealed to Superior Court of Wilson County, assigning as error the following:
"1. The court erred in its findings and conclusions of law as set forth in paragraph 7, `the time for answering for the purpose of the motion for change of venue has expired.'
That the court erred in its conclusions of law as set forth in paragraph 7 that `the court is of the opinion at the defendant has waived her right to have this cause moved to Nash County.'
"3. The court erred in rendering the judgment set out in the record."
(VIII) The cause thereafter coming on for hearing and being heard in Superior Court on the appeal from General County Court as aforesaid, Fountain, S. J., being of opinion at the first exception of the defendant should be allowed for that the time for answering has not expired, and further being of opinion that the second and third exceptions should be denied for that, in the opinion of the court, defendant has waived her right to remove the cause to Nash County, ordered and decreed that the order of the Judge of the General County Court of Wilson County dated 15 September, 1958, be affirmed.
Defendant excepts thereto, and appeals to Supreme Court and assigns error.
The General Assembly of North Carolina has declared (1) specifically — that, the General County Court in Wilson County shall have jurisdiction to try actions for divorce, according to the course and practice of the Superior Court in such action. P.L. 1931, Chap. 61, Sec. 1 (h); (2) expressly — that the jurisdiction of the General County Court in civil actions shall be concurrent with the Superior Court in all actions and proceedings for divorce and alimony, or either, G.S. 7-279 (6); (3) that in all proceedings for divorce the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides, G.S. 50-3 Venue; and (4) that if the county designated for the purpose of summons and complaint is not the proper one, the action may be tried therein unless the defendant, before the time for 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 the parties, or by order of the court. G.S. 1-83.
And in respect to the statute G.S. 50-3, decisions of this Court hold that its provisions are not jurisdictional, but relate to venue, McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138, and may be waived.
Furthermore, it is provided in G.S. 1-125 that "the defendant must appear and demur or answer within thirty (30) days after the service of summons upon him, or within the thirty (30) days after the final determination of a motion to remove as a matter of right * * *." In the light of the provisions of this statute, it would seem that in a case where defendant claims right of removal as a matter of right the first move of defendant is motion for change of venue — and that upon failure to so move the right is waived.
And if an action for divorce be instituted in any other county in the State the action may be tried therein unless the defendant demands in writing that the trial be had in the proper county. Smith v. Smith, 226 N.C. 506, 39 S.E.2d 391, citing Davis v. Davis, 179 N.C. 185, 102 S.E. 270.
Indeed in McLean v. McLean, supra, this Court in opinion by Devin, J., later C.J., had this to say: "The mere fact of instituting suit for divorce in a county other than that of plaintiff's residence would not be regarded as affecting the jurisdiction of the court over the action on proper service, but rather as affecting the question of venue."
Moreover, in Waters v. McBee, 244 N.C. 540, 94 S.E.2d 640, Rodman, J., interpreting for the Court the phrase "shall have jurisdiction over the entire county in which said court may be established" appearing in G.S. 7-265, made this pertinent observation: "Had it been the intention of the Legislature to limit the jurisdiction of the General County Court to causes of action arising in the county, it would have been simple and appropriate for it to have inserted such a provision in S. 14 of the Act, prescribing the jurisdiction of the court. G.S. 7-279. No such limitation appears." To the contrary the General Assembly has made express provisions for change of venue in appropriate cases. G.S. 7-286.
In the light of the provisions of these statutes applies to the facts appearing upon the face of the record on, this appeal, the court is of opinion and holds that the judgment from which appeal is taken is proper, and should be affirmed.
Affirmed.