{
  "id": 8553688,
  "name": "SWIFT AND COMPANY v. DAN-CLEVE CORPORATION and F. ROLAND DANIELSON and BILL CLEVE Trading and Doing Business as SHERATON MOTOR INN and SHERATON MOTOR INN RESTAURANT",
  "name_abbreviation": "Swift & Co. v. Dan-Cleve Corp.",
  "decision_date": "1975-07-02",
  "docket_number": "No. 755DC303",
  "first_page": "494",
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Parker concur."
    ],
    "parties": [
      "SWIFT AND COMPANY v. DAN-CLEVE CORPORATION and F. ROLAND DANIELSON and BILL CLEVE Trading and Doing Business as SHERATON MOTOR INN and SHERATON MOTOR INN RESTAURANT"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe question presented by this appeal is whether the trial court\u2019s findings of fact support its conclusion that defendants impliedly waived their motion for venue change as a matter of right.\nVenue is not jurisdictional. It may b\u00e9 waived \u201cunless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county. . . .\u201d G.S; 1-83. See Nelms v. Nelms, 250 N.C. 237, 108 S.E. 2d 529 (1959) ; Roberts v. Moore, 185 N.C. 254, 116 S.E. 728 (1923). Under G.S. 1A-1, Rule 12(b) (3), the defense of improper venue may be raised in the answer if no pre-answer motions have been made. If not raised in the answer, the defense is waived. Nevertheless, the trial court has no discretion in ordering a change of venue if demand is properly made and it appears that the action has been brought in the wrong county. Mitchell v. Jones, 272 N.C. 499, 158 S.E. 2d 706 (1968) ; Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E. 2d 54 (1952).\nThe court below found as a fact that defendants\u2019 demand was timely. Thus, the sole basis for the court\u2019s conclusion that defendants impliedly waived venue was its finding that they did not pursue their motion until plaintiff filed its motion for sanctions. While failure to press a motion to remove may constitute waiver under certain circumstances, see, e.g., Wynne v. Conrad, 220 N.C. 355, 17 S.E. 2d 514 (1941), there is no implication of waiver in a delay of only four months. The fact that it was plaintiff\u2019s motion which prodded defendants into action is immaterial. Having made timely demand, defendants were entitled to show that venue was improper.\nPlaintiff, citing Chow v. Crowell, 15 N.C. App. 733, 190 S.E. 2d 647 (1972), contends that defendants have filed no verified motion or affidavits pursuant to G.S. 1-85 and have failed to carry the burden of proving facts alleged in their motion to remove. We disagree.\n\u25a0 Nothing in the Rules of Civil Procedure requires that the motion be verified. See G.S. 1A-1, Rule 7(b) (2), Rules 11(a) and (b), and Rule 12(b) (3). The requirement of G.S. 1-85 that affidavits set forth particularly and in detail grounds fdr removal refers only to G.S. 1-84 (removal for fair trial) and not to G.S. 1-83 (removal where county designated not proper). G.S. 1-83 requires only that a demand for venue change be in writing.\nFurthermore, the Chow case requires affidavits of a moving party only when opposing affidavits are submitted. In the case at bar, plaintiff filed no affidavits opposing defendants\u2019 motion on its merits. Defendants\u2019 failure to file affidavits or verified motion therefore is not fatal.\nSince the trial court\u2019s findings of fact are clearly insufficient to support its conclusion that defendants waived their motion to remove, the order denying the motion must be reversed and the cause r\u00e9manded for a determination of proper venue under G.S. 1-82.\nReversed and remanded.\nChief Judge Brock and Judge Parker concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Stevens, McGhee, Morgan & Lennon, by Charles E. Sweeney, Jr., for plaintiff appellee.",
      "Vaughan S. Winborne for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "SWIFT AND COMPANY v. DAN-CLEVE CORPORATION and F. ROLAND DANIELSON and BILL CLEVE Trading and Doing Business as SHERATON MOTOR INN and SHERATON MOTOR INN RESTAURANT\nNo. 755DC303\n(Filed 2 July 1975)\n1. Venue \u00a7 1\u2014 waiver \u2014 failure to pursue until motion for sanctions\nDefendants did not waive the defense of improper venue by their failure to pursue the motion until plaintiff filed its motion for sanctions for defendants\u2019 failure to answer interrogatories some four months after defendants moved in their answer for change of venue. G.S. 1A-1, Rule 12(b) (3).\n2. Venue \u00a7 7\u2014 motion to remove to proper county \u2014 verification \u2014 affidavits\nDefendants\u2019 motion for a change of venue to the proper county was not required to be verified or supported by affidavits.\nAppeal by defendants from Barefoot, Judge. Order entered 28 February 1975 in District Court, New Hanover County. Heard in the Court of Appeals 11 June 1975.\nPlaintiff instituted this action on 20 September 1974 seeking to recover on an open account for products sold to defendants. In their answer defendants denied the debt and moved for change of venue on the grounds that none of the parties resided in New Hanover County and the action did not arise there.\nOn 16 January 1975 plaintiff filed interrogatories. When defendants failed to answer within 30 days, plaintiff filed a motion for sanctions whereupon defendants filed notice of hearing on their motion for change of venue. A hearing was held on the motions, and the court entered an order denying defendants\u2019 motion and holding that they had impliedly waived their motion for change of venue. Defendants appealed to this Court.\nStevens, McGhee, Morgan & Lennon, by Charles E. Sweeney, Jr., for plaintiff appellee.\nVaughan S. Winborne for defendant appellants."
  },
  "file_name": "0494-01",
  "first_page_order": 522,
  "last_page_order": 524
}