The defendants moved to remove this action to Hyde County for improper venue, upon the ground that the Atlantic Coast Line Railroad Company was a foreign corporation, and that the defendant Spencer is a resident of Hyde County and the defendant transportation company is a domestic corporation having its principal place of business in said county. The cause was removed, not as a matter of discretion, or because of the convenience of witnesses, but on the ground that it was improperly brought in the county of Gates, the Atlantic Coast Line Railroad Company being held a foreign corporation.
The motion was erroneously allowed. Whether an individual is a resident of this State or not depends upon evidence, and is (523) a question of fact to be passed upon by the Federal court. But whether a corporation is a North Carolina corporation or not is a matter of law depending upon its charter.
The question of law whether the Atlantic Coast Line Railroad Company is a North Carolina corporation was decided in this Court in a *Page 458 very able and conclusive opinion by Connor, J., now the accomplished judge of the United States District Court for the Eastern District of North Carolina, in an exhaustive opinion in Staton v. R.R.,144 N.C., pp. 145-154, to which we feel unable to add anything. That opinion is based upon Federal authorities therein cited. It has been cited as authority, Hough v. R. R., 144 N.C. 701;Hurst v. R.R., 162 N.C. 371, 372; and has been reaffirmed inCox v. R. R., post.
If, as suggested, the principal place of business of the Atlantic Coast Line Railroad Company is in New Hanover, the action should have been brought in that county. Rev., 422. But Rev., 425, provides that if an action is not brought "in the proper county, it may, notwithstanding, be tried there, unless the defendant before the time of answering expires demand in writing that the trial be had in the proper county." The defendant did not demand that the action be removed to New Hanover, and it was error to remove it to the county of Hyde, on the ground assigned in the motion and order of removal.
Reversed.
Cited: Brown v. Jackson, 179 N.C. 365, 375, 377; Mizzell v. R. R.,181 N.C. 38; Corporation Com. v. Mfg. Co., 185 N.C. 36.