{ "id": 8552133, "name": "ROBERT MILLER v. LENORA JACKSON MILLER", "name_abbreviation": "Miller v. Miller", "decision_date": "1978-09-19", "docket_number": "No. 7721DC905", "first_page": "95", "last_page": "99", "citations": [ { "type": "official", "cite": "38 N.C. App. 95" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "199 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560098, 8560130, 8560142, 8560113, 8560159 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0121-01", "/nc/284/0121-03", "/nc/284/0121-04", "/nc/284/0121-02", "/nc/284/0121-05" ] }, { "cite": "198 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 N.C. App. 137", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551138 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/19/0137-01" ] }, { "cite": "86 S.E. 957", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "170 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657692 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nc/170/0152-01" ] }, { "cite": "78 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "238 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612118 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/238/0506-01" ] }, { "cite": "36 S.E. 47", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1900, "opinion_index": 0 }, { "cite": "126 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660900 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/nc/126/0507-01" ] }, { "cite": "2 S.E. 346", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1887, "opinion_index": 0 }, { "cite": "97 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649272 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/nc/97/0086-01" ] }, { "cite": "216 S.E. 2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "dicta" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553688 ], "year": 1975, "pin_cites": [ { "parenthetical": "dicta" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0494-01" ] }, { "cite": "158 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "parenthetical": "dicta" } ], "opinion_index": 0 }, { "cite": "272 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573684 ], "year": 1968, "pin_cites": [ { "parenthetical": "dicta" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0499-01" ] }, { "cite": "120 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568183 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0202-01" ] } ], "analysis": { "cardinality": 396, "char_count": 9354, "ocr_confidence": 0.809, "pagerank": { "raw": 4.5360947092338877e-07, "percentile": 0.9240702836342968 }, "sha256": "d2b9c66d412059c84583d7b63e6b19e7183736285df91469ae7526f7992d7811", "simhash": "1:e82a79a737c939d2", "word_count": 1655 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge BROCK and Judge HEDRICK concur." ], "parties": [ "ROBERT MILLER v. LENORA JACKSON MILLER" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe proper venue in a divorce action is the county in which either the husband or the wife resides. N.C.G.S. \u00a7\u00a7 50-3, 1-82. Here, the action was filed in Forsyth County, but both husband and wife were residents of Guilford County. However, venue is not jurisdictional, but is only ground for removal to the proper county upon a timely objection made in the proper manner. Farmers Cooperative Exchange, Inc. v. Trull, 255 N.C. 202, 120 S.E. 2d 438 (1961); 13 Strong\u2019s N.C. Index 3d, Venue, \u00a7 1, p. 269. The place of trial may, of course, be changed whenever: \u201cthe county designated for that purpose is not the proper one, . . . the convenience of witnesses and the ends of justice would be promoted by the change, . . . the judge has, at any time, been interested as party or counsel, . . . motion is made by the plaintiff and the action is for divorce and the defendant has not been personally served with summons.\u201d N.C.G.S. \u00a7 1-83.\nDefendant made a timely motion for removal under Rule 12(b), which requires that the motion be made at or before the time of filing an answer, and the motion was made in the proper manner. Defendant contends that whenever an action has been brought in the wrong county such a properly made motion for change of venue must be granted.\nThe general rule in North Carolina, as elsewhere, is that where a demand for removal for improper venue is timely and proper, the trial court has no discretion as to removal. Mitchell v. Jones, 272 N.C. 499, 158 S.E. 2d 706 (1968) (dicta); Swift and Co. v. Dan-Cleve Corp., 26 N.C. App. 494, 216 S.E. 2d 464 (1975) (dicta); 1 McIntosh, N.C. Practice & Procedure, \u00a7 832, p. 434 (2d ed., 1956). The provision in N.C.G.S. \u00a7 1-83 that the court \u201cmay change\u201d the place of trial when the county designated is not the proper one has been interpreted to mean \u201cmust change.\u201d Jones v. Statesville, 97 N.C. 86, 2 S.E. 346 (1887). Contra, Lassiter v. Norfolk & Carolina R.R. Co., 126 N.C. 507, 36 S.E. 47 (1900).\nHowever, since venue is not jurisdictional it may be waived by express or implied consent, 13 Strong\u2019s N.C. Index 3d, Venue, \u00a7 1, p. 269, and a defendant\u2019s failure to press his motion to remove has been found to be a waiver. Jones v. Brinson, 238 N.C. 506, 78 S.E. 2d 334 (1953); Oettinger v. Hill Live Stock Co., 170 N.C. 152, 86 S.E. 957 (1915); Swift and Co. v. Dan-Cleve Corp., supra; Strong\u2019s N.C. Index 3d, supra. The question then is whether this defendant\u2019s failure to appear on the second hearing date, having received a continuance at the first hearing date five months earlier, is a failure to pursue her motion sufficient to constitute a waiver.\nIn Jones v. Brinson, supra, removal was by consent of the parties, but when both parties failed for a period of five months to tend to the administrative details required of them for removal, the plaintiff was found to have waived his right to object when defendant sought in the court of original venue to have the order of removal rescinded. The court in Oettinger, supra, denied defendant\u2019s motion for removal, but gave him time to file additional affidavits, which he failed to do. The case was continued at defendant\u2019s request for five months, at which time the motion was renewed and denied. The court found that defendant\u2019s failure to file the affidavits and to except to or appeal the denial of his motion constituted a waiver. Recently this Court in the Swift case, supra, found no waiver in a delay of four months, but in that case the defendant neither sought a continuance nor failed to appear on the hearing date, but merely took no action during the period.\nHere, almost a year passed between the time defendant filed her motion and the first hearing date, but defendant sought a continuance at that time, and on the second hearing date five months later failed to appear. The trial court was justified in finding an implied waiver of defendant\u2019s right to a change of venue by her failure to pursue her motion for removal. The motion was properly dismissed and defendant\u2019s argument to the contrary is rejected.\nHowever, defendant correctly contends that the trial court erred in granting plaintiff a divorce on the same day the court ruled on defendant\u2019s Rule 12(b) motion, and prior to defendant\u2019s filing an answer in the action. As a general rule defendant has 30 days after service of the complaint upon him to file his answer. N.C.G.S. \u00a7 1A-1, Rule 12(a)(1). However, service of a Rule 12 motion alters the time period, giving defendant 20 days after notice of the court\u2019s action on the motion to file his answer. Moseley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E. 2d 36, cert. denied 284 N.C. 121, 199 S.E. 2d 659 (1973); N.C.G.S. \u00a7 1A-1, Rule 12 (a)(1)a; 1 McIntosh, supra, \u00a7 833. Defendant in this action filed a Rule 12 motion upon which the court ruled on 1 June 1977. Defendant was entitled to notice of this action, and to 20 days after the notice to file an answer to plaintiff\u2019s complaint. The court erred in finding as fact that the time for pleading had expired and in entering judgment for plaintiff.\nDefendant also argues that, as her time for answering had not expired, neither had her time for demanding a jury trial. A party is entitled to demand trial by jury until 10 days after the service of the last pleading. N.C.G.S. \u00a7\u00a7 50-10; 1A-1, Rule 38(b). Here, as the time for service of an answer had been extended by Rule 12(a), so had the time for demanding a jury trial.\nWe find that defendant\u2019s motion for removal was properly dismissed, but that the trial court erred in entering judgment before the time to answer had expired. Judgment is therefore vacated.\nAffirmed in part, and\nReversed and remanded in part.\nChief Judge BROCK and Judge HEDRICK concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "No counsel for plaintiff appellee.", "Tate & Bretzmann, by Raymond A. Bretzmann, for defendant appellant." ], "corrections": "", "head_matter": "ROBERT MILLER v. LENORA JACKSON MILLER\nNo. 7721DC905\n(Filed 19 September 1978)\n1. Divorce and Alimony \u00a7 3\u2014 venue in divorce action\nWhile the proper venue in a divorce action is the county in which either the husband or the wife resides, venue is not jurisdictional but is only ground for removal to the proper county upon a timely objection made in the proper manner. G.S. 50-3; G.S. 1-82.\n2. Venue \u00a7 7\u2014 removal for improper venue \u2014no discretion in court \u2014 waiver of proper venue\nWhere a demand for removal for improper venue is timely and proper, the trial court has no discretion as to removal. However, proper venue may be waived by express or implied consent.\n3. Divorce and Alimony \u00a7 3; Venue \u00a7 1\u2014 waiver of right to change of venue \u2014 failure to appear for hearing\nDefendant impliedly waived her right to a change of venue in a divorce action where almost a year passed between the time defendant filed her motion and the first hearing date on the motion, at which time defendant received a continuance, and defendant failed to appear on the second hearing date five months later.\n4. Divorce and Alimony \u00a7 2.2; Pleadings \u00a7 9; Rules of Civil Procedure \u00a7 12\u2014 motion for change of venue \u2014 extension of time for filing answer\nDefendant in a divorce action had 20 days after notice of the court\u2019s action on her Rule 12(b) motion for change of venue in which to file her answer; therefore, the court erred in finding that the time for pleading had expired and in entering judgment for plaintiff on the same day the court ruled on defendant\u2019s motion for a change of venue and before defendant had filed an answer. G.S. 1A-1, Rule 12(a)(l)a.\n5. Divorce and Alimony \u00a7 2.4; Rules of Civil Procedure \u00a7 38\u2014 divorce action \u2014 request for jury trial \u2014time for making\nWhere defendant\u2019s time for filing an answer in a divorce action had not expired, her time for demanding a jury trial had not expired, since she was entitled to demand a jury trial until 10 days after the service of the last pleading. G.S. 50-10; G.S. 1A-1, Rule 38(b).\nAPPEAL by defendant from Alexander (Abner), Judge. Judgment entered 1 June 1977, in District Court, FORSYTH County. Heard in the Court of Appeals 21 August 1978.\nPlaintiff husband brought an action for divorce, and defendant wife moved for a change of venue under Rule 12(b). Her motion was dismissed for failure to properly pursue it, and a divorce was granted to plaintiff that same day. Defendant assigns as error the dismissal of her motion and the granting of divorce before her time to answer had expired.\nOn 24 November 1975, plaintiff filed a complaint in Forsyth County seeking a divorce, stating that both parties were residents of Guilford County. On 22 December 1975, defendant moved under N.C.G.S. \u00a7 1A-1, Rule 12(b)(3) for removal, stating that venue in Forsyth County was improper since both parties were residents of Guilford County. The motion was scheduled for hearing on 13 December 1976, at which time defendant received a continuance, and again on 31 May 1977, when defendant did not appear.\nOn 1 June 1977, the judge dismissed defendant\u2019s motion for removal on the ground that she had not pursued it as required. Also on 1 June 1977, the judge heard plaintiffs evidence and granted him a divorce, finding as fact that defendant had filed no answer nor request for a jury trial, that no extension of time to file had been granted, and that the time for pleading had expired.\nFrom the dismissal of her motion and the granting of divorce defendant appeals.\nNo counsel for plaintiff appellee.\nTate & Bretzmann, by Raymond A. Bretzmann, for defendant appellant." }, "file_name": "0095-01", "first_page_order": 123, "last_page_order": 127 }