This action was instituted in the Superior Court of Wake County to determine the liability of the plaintiff on certain surety bonds executed for and on behalf of the Bank of Black Mountain, indemnifying said bank against loss under circumstances and conditions set forth in said bonds.
The defendant made a motion for change of venue and to remove to Buncombe County, N.C. as a matter of right and also in the exercise of the court's discretion for the convenience of witnesses and the promotion of justice. Motion granted and plaintiff appealed to the Supreme Court.
Since the appellant is not required to docket its appeal until the Fall Term of this Court, the appellee has filed a motion to docket and dismiss the appeal for the reason he contends, that it appears upon the face of the record that the appeal is obviously frivolous and appears to have been taken only for the purpose of delay.
In reply to the motion to docket and dismiss the appeal, the appellant denies that it is seeking a review of a discretionary order. It contends that it appears conclusively from the record that there are no issues of fact presently raised and therefore an order for removal for the "convenience of witnesses," when there are no witnesses to be convenienced, is premature. That if issues of fact are raised when answer is filed, which will necessitate a jury trial and the attendance of witnesses, then and not until then will it be proper to make a motion for removal for convenience of witnesses. Furthermore, it is contended that since only questions of law are presently raised, the order of removal cannot be sustained as a matter of law. We express no opinion on the merits of the appeal, other than to say we think the appellant is entitled to a hearing thereon.
Motion denied. *Page 189