Such a motion, if interposed, will be addressed to the discretion of the court. Teer Co. v. Hitchcock Corp., supra; R. R. v. Thrower, 213 N.C. 637, 197 S.E. 197; Riley v. Pelletier, 134 N.C. 316, 46 S.E. 734. As to defendant Gray, appeal dismissed.
Upon appeal the order of the lower court was affirmed This Court said: "And we see no essential difference in so far as an interest in real property is involved, in an action to foreclose a mortgage, a lien created by contract, and in one to foreclose a specific statutory lien on real property." R. R. v. Thrower, 213 N.C. 637, 197 S.E. 197, was a civil action instituted in Cumberland County by plaintiff, which had its principal place of business in Wilmington, New Hanover County, North Carolina, to recover of defendant, a resident of Mecklenburg County, the amount of an unpaid cheque. In apt time defendant duly filed a written motion to remove the action for trial to Mecklenburg County. Thereupon, plaintiff filed a motion that the Court retain the action in Cumberland County for that: "(2) The convenience of witnesses and the ends of justice would be promoted by retaining this action for the trial in this court, for the reason that": and the motion then sets out pertinent facts in support thereof. From an order denying defendant's motion for a change of venue, and in the court's discretion retaining the case for trial in the superior court of Cumberland County for the convenience of witnesses and to promote the ends of justice, defendant appealed.
When the motion to remove to the county of the residence of the defendant, the action not having been brought in the proper county, is made, the question of removal is not one of discretion, but `may' means shall, or must, and it becomes the duty of the judge to remove the cause. (Cases cited.)" R. R. v. Thrower, 213 N.C. 637, 197 S.E. 197; Teer Co. v. Hitchcock, 235 N.C. 741, 71 S.E.2d 54; Roberts v. Moore, 185 N.C. 254, 116 S.E. 728; McIntosh, N.C. P P, 279, sec. 295. It is a matter of common knowledge that Mecklenburg County is bordered by the northern line of South Carolina, and that Chester, S.C., is a town in South Carolina near Charlotte, the county seat of Mecklenburg County. Hence it would seem that the court below might well have granted the motion to remove for the convenience of witnesses.
In view of the fact that a defendant will have his rights determined in an action instituted in an improper county, unless he seasonably asserts his right for removal to a proper one, we hold that where a plaintiff voluntarily institutes an action in an improper county and files his complaint and obtains service on the defendant, he thereby waives his right to have the action removed to the county of his residence. In our opinion this conclusion is supported by the provisions of G.S. 1-83 and our decisions, although the precise point seems not to have been expressly determined heretofore on a factual situation identical with that presented on this appeal. Cf. Pushman v. Dameron, 208 N.C. 336, 180 S.E. 578; and R. R. v. Thrower, 213 N.C. 637, 197 S.E. 191. In Pushman v. Dameron, supra, the plaintiff instituted an action in Guilford County against E. P. Dameron, administrator of Barrur H. Serunian, deceased, to recover damages for personal injuries resulting from the reckless driving of an automobile by defendant's intestate.
The defendants are railroads. Thus it would seem, upon the instant record, "the action must be tried" (C. S., 468) in New Hanover County, or some adjoining county, unless the place of trial is changed as provided by statute. Forney v. R. R., 159 N.C. 157, 74 S.E. 884; R. R. v. Thrower, 213 N.C. 637. Reversed.
[t]his may seem to require a circuitous method of finally determining the venue for the trial of this cause when and after the plaintiff has been heard upon its motion, if it elects to renew it, in the Mecklenburg Superior Court. Be that as it may, we are required to interpret and declare the law as it is written — not as we may think it should be. 213 N.C. 637, 640, 197 S.E. 197, 199 (1938). Although the case before us is also taking a circuitous path, it is still the path which the law has determined and both this Court and the trial court must follow.
" Another case with similar facts is R. R. v. Thrower, 213 N.C. 637, 197 S.E. 197. There, the plaintiff, a resident of New Hanover, instituted an action in Cumberland County on an unpaid check against the defendant, a resident of Mecklenburg. Defendant filed a motion for change of venue to Mecklenburg, and plaintiff filed a motion to retain the action in Cumberland for the convenience of the witnesses. The court denied defendant's motion and retained the action in Cumberland pursuant to plaintiff's motion.