{
  "id": 8605605,
  "name": "HOVSEP PUSHMAN v. E. P. DAMERON, Administrator of BARRUR H. SERUNIAN, Deceased",
  "name_abbreviation": "Pushman v. Dameron",
  "decision_date": "1935-06-26",
  "docket_number": "",
  "first_page": "336",
  "last_page": "337",
  "citations": [
    {
      "type": "official",
      "cite": "208 N.C. 336"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "100 S. E., 131",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "178 N. C., 12",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11270627
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/178/0012-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 278,
    "char_count": 4926,
    "ocr_confidence": 0.428,
    "pagerank": {
      "raw": 2.480623543464417e-07,
      "percentile": 0.8074712077808397
    },
    "sha256": "331413941920cf7936de81dba70e72d71c976d09e7071f8719e08c1c4d316db0",
    "simhash": "1:2a30dcd2765ea817",
    "word_count": 837
  },
  "last_updated": "2023-07-14T21:53:32.811961+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "HOVSEP PUSHMAN v. E. P. DAMERON, Administrator of BARRUR H. SERUNIAN, Deceased."
    ],
    "opinions": [
      {
        "text": "BrogdeN, J.\nWhen an action has been instituted against a personal representative of decedent, in tbe proper county, to recover damages for personal injuries due to tbe negligence of sucb decedent, has the trial judge, upon proper motion made in apt time, the power to remove the cause for trial to another county?\nIt 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.\nThe solution of the legal proposition depends upon the construction to be given C. S., 465. This statute provides that all actions \u201cagainst executors and administrators in their official capacity must be instituted in the county where the bonds were given,\u201d etc. C. S., 470, provides that \u201cthe court may change the place of trial in the following cases: \u2018Subsection 2. When the convenience of witnesses and the ends of justice would be promoted by the change.\u2019 \u201d 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 O. S., 465, requiring that actions against administrators \u201cmust be instituted in the county,\u201d 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.\nThis Court is not disposed to adopt that view of the law. It was held in Latham v. Latham, 178 N. C., 12, 100 S. E., 131, that the words of C. S., 465, \u201cmust be instituted in the county\u201d 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.\nThe 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.\nThe 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.\nReversed.",
        "type": "majority",
        "author": "BrogdeN, J."
      }
    ],
    "attorneys": [
      "Adams & Adams for plaintiff.",
      "Smith, Wharton & Hudgins for defendant."
    ],
    "corrections": "",
    "head_matter": "HOVSEP PUSHMAN v. E. P. DAMERON, Administrator of BARRUR H. SERUNIAN, Deceased.\n(Filed 26 June, 1935.)\nVenue O a \u2014 Trial court lias discretionary power to grant motion for change of venue in action instituted against personal representative.\nWhile an action against an executor or administrator must be instituted in the county in which defendant gave bond, O. S., 465, the statute does not iweclude the court from changing the venue to another county, in his discretion, for the convenience of witnesses and the promotion of the ends of justice, upon motion properly made under O. S., 470 (2), and since plaintiff is bound to institute the action in the county in which defendant gave bond, his act in so doing cannot be imputed to him as a voluntary choice of venue, so as to prevent the lodging of a motion under O. S., 470 (2).\nCivil actioN, before McElroy, J., at February Term, 1935, of GtriL-EORD.\nTbe plaintiff instituted this action against tbe defendant to recover damages for personal injuries resulting from tbe reckless driving of an automobile by defendant\u2019s intestate. Tbe action was instituted in Guilford County. Tbe accident occurred near Fletcher, in Henderson County, and defendant\u2019s intestate was killed. After tbe action bad been filed and tbe cause at issue, tbe plaintiff made a motion \u201cto transfer and remove tbe above-entitled cause from tbe Superior Court of Guilford County to tbe Superior Court of Buncombe County for trial, for tbat: \u2018(1) Convenience of witnesses will thereby be greatly promoted, and (2) tbe ends of justice will thereby best be served.\u2019 \u201d After bearing affidavits and argument of counsel, the trial judge found \u201cas a fact tbat tbe convenience of witnesses and tbe ends of justice would be promoted by a removal of this cause to Buncombe County for trial.\u201d\nNotwithstanding, bis Honor was of tbe opinion tbat \u201cunder tbe provision of tbe statute of tbe State of North Carolina it is mandatory tbat this cause be retained for trial in Guilford County, and tbat, therefore, tbe court is without power to grant tbe plaintiff\u2019s motion for removal,\u201d etc.\nFrom judgment retaining tbe cause in Guilford County tbe plaintiff appealed.\nAdams & Adams for plaintiff.\nSmith, Wharton & Hudgins for defendant."
  },
  "file_name": "0336-01",
  "first_page_order": 402,
  "last_page_order": 403
}