The plaintiff instituted this action against the defendant to recover damages for personal injuries resulting from the reckless driving of an automobile by defendant's intestate. The action was instituted in Guilford County. The accident occurred near Fletcher, in Henderson County, and defendant's intestate was killed. After the action had been filed and the cause at issue, the plaintiff made a motion "to transfer and remove the above-entitled cause from the Superior Court of Guilford County to the Superior Court of Buncombe County for trial, for that: `(1) Convenience of witnesses will thereby be greatly promoted, and (2) the ends of justice will thereby best be served.'" After hearing affidavits and argument of counsel, the trial judge found "as a fact that the convenience of witnesses and the ends of justice would be promoted by a removal of this cause to Buncombe County for trial."
Notwithstanding, his Honor was of the opinion that "under the provision of the statute of the State of North Carolina it is mandatory that this cause be retained for trial in Guilford County, and that, therefore, the court is without power to grant the plaintiff's motion for removal," etc.
From judgment retaining the cause in Guilford County the plaintiff appealed. When an action has been instituted against a personal representative of decedent, in the proper county, to recover damages for *Page 337 personal injuries due to the negligence of such decedent, has the trial judge, upon proper motion made in apt time, the power to remove the cause for trial to another county?
It does not appear from the record that the administrator of deceased ever gave bond in Guilford County, where the action was begun. But this seems to be admitted in the briefs, and the question of law involved will be discussed upon the assumption that the defendant duly qualified and gave bond in Guilford County.
The solution of the legal proposition depends upon the construction to be given C. S., 465. This statute provides that all actions "against executors and administrators in their official capacity must be instituted in the county where the bonds were given," etc. C. S., 470, provides that "the court may change the place of trial in the following cases: `Subsection 2. When the convenience of witnesses and the ends of justice would be promoted by the change.'" Obviously, the excerpt from C. S., 470, would warrant the court in changing the place of trial for either party, if it should be found that the convenience of witnesses and the ends of justice will be promoted by such change. The defendant, however, insists that the wording of C. S., 465, requiring that actions against administrators "must be instituted in the county," etc., is mandatory. Consequently, a judge would have no power to change the place of trial for any purpose. Furthermore, it is contended that a contrary holding would make it possible that an administrator or executor could be harried about the State from one county to another for purposes of trial.
This Court is not disposed to adopt that view of the law. It was held inLatham v. Latham, 178 N.C. 12, 100 S.E. 131, that the words of C. S., 465, "must be instituted in the county" did not necessarily mean that the cause should be actually tried in such county. While such distinction may not have been absolutely pertinent to the decision of the Latham case,supra, nevertheless such distinction appears to be sound.
The plaintiff was compelled to institute his action in the Superior Court of Guilford County by reason of the mandate of the statute, and his act in so doing could not therefore be imputed to him as a voluntary choice of venue so as to prevent him from lodging a motion for removal.
The Court is of the opinion, and so holds that the trial judge in the exercise of a sound discretion, had the power, upon finding the necessary facts, to remove the cause to another county for trial.
Reversed. *Page 338