#### A. W. HOWARD v. QUEEN CITY COACH COMPANY, a Corporation.

(Filed 13 October, 1937.)

1. Venue § 1 — Evidence held sufficient to support finding that plaintiff’s residence was in county in which action was instituted.

The trial court found, upon supporting affidavits, that prior to the institution of the action plaintiff sold his residence in another county and moved his family and household effects from said county to a town in the county in which the action was instituted, and rented an apartment therein for a period of five months when he moved to another county, hut that during that time plaintiff resided in the county in which the action was instituted, although plaintiff was away a considerable portion of the time on business and for medical attention. The court held on the facts found that at the time of the institution of the action plaintiff was a resident of the county, and refused defendant’s motion to remove, N. C. Code, 469, 470. Held: The finding was supported by sufficient evidence, and defendant’s motion was properly denied.

2. Appeal and Error § 40a—

The findings of fact in regard to residence of plaintiff upon defendant’s motion to remove are conclusive on appeal when supported by competent evidence.

S. Domicile § 1—

Domicile or legal residence is made up of the fact of residence and the intent to make it a permanent home, without present intent to remove and with intent to return when absent from it.

4. Venue § 8b: Appeal and Error § 37b—

A motion for change of venue for convenience of witnesses and to promote the ends of justice is addressed to the sound discretion of the trial judge, and his action thereon is not reviewable upon appeal except upon abuse of discretion.

Winborne, 3., took no part in the consideration or decision of this case.

Appeal by defendant from Clement, J., at June Term, 1937, of McDowell.

Affirmed.

This is a civil action for actionable negligence, instituted by plaintiff against defendant in McDowell County, N. C. The defendant moved to have the case removed to Buncombe County for trial: (1) On the ground that at the time of the institution of the action the plaintiff was a resident of Buncombe County; for “the convenience of witnesses and the ends of justice would be promoted by the change.” The clerk of the Superior Court declined to remove the case, and the defendant. appealed to the judge of the Superior Court. The judge presiding declined to remove the case, and the defendant excepted and assigned error to the order made and appealed to the Supreme Court. The only exception and assignment of error is to the order denying the motion to remove.

Morgan & Story for plaintiff.

Williams & Cocke for defendant.

*202ClaeksoN, J.

N. C. Code, 1935 (Micbie), sec. 469, is as follows: “In all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement; or, if none of the defendants reside in the State, then in the county in which the plaintiffs, or any of them, reside; and if none of the parties reside in the State, then the action may be tried in any county which the plaintiff designates in his summons and complaint, subject to the power of the court to change the place of trial, in the case provided by statute.”

Section 470: “If the county designated for that purpose in the summons and complaint is not the proper one, the action may, however, be tried therein, unless the defendant, before the time of answering expires, demands in writing that the trial be conducted in the proper county, and the place of trial is thereupon changed by consent of parties, or by order of the court. The court may change the place of trial in the following eases: (1) When the county designated for that purpose is not the proper one. (2) When the convenience of witnesses and the ends of justice would be promoted by the change,” etc.

The defendant in apt time filed a petition before the clerk of the Superior Court of McDowell County, N. C., alleging: “(1) The plaintiff at the time of the institution of this action was a citizen and resident of Buncombe County, North Carolina. (2) The ends o'f justice as well as the convenience of witnesses will be promoted by the change.”

The clerk declined to remove the action, and, on appeal, the court below did likewise. The court below heard affidavits on the matters in controversy and found certain facts and rendered judgment as follows :

“1. The court finds as a fact that plaintiff alleges he was injured by collision between his automobile and the defendant’s bus, and that said collision occurred in McDowell County; that it would be as convenient for witnesses to attend in McDowell County as in Buncombe County.

“2. The court finds as a fact that prior to 20 July, 1936, that the plaintiff was a resident of Buncombe County, living in the town of Black Mountain, and that on 26 July, 1936, the plaintiff sold his residence in Black Mountain and on 22 July, 1936, rented apartment or rooms in a home in the town of Marion and removed his household effects and family from Black Mountain in Buncombe County to Marion in McDowell County.

“3. The court further finds as a fact that the plaintiff is a traveling man; that he paid rent on his rooms in McDowell County in the town of Marion until January, 1937, at which time he left said county and moved to Siler City with his family. That during the time the plaintiff resided in Marion with his family he- was away from home a considerable portion of the time in the transaction of his business, and in having a doctor in Charlotte treat himself and his wife.

*203“4. Tbe court is of the opinion, and so holds, that at the time of the institution of this action in July, 1936, plaintiff was a bona fide resident of McDowell County, and as such resident is entitled to maintain his action in the Superior Court of said county.

“5. The court finds as a fact that the collision occurred near Marion, in McDowell County, and the court finds that it would be as convenient for the witnesses to attend court in McDowell County as it would be in Buncombe County, and that the ends of justice would not be promoted by removal of the cause to Buncombe County from McDowell County.

“Upon the findings, the court is of the opinion, and so holds, that the motion of the defendant for the removal of said cause is denied and the cause is retained for trial in McDowell County Superior Court.”

In Horne v. Horne, 31 N. C., 99 (107), speaking to the subject, it is said: “The term domicile, in its ordinary and familiar use, means the place where a person lives, or has his home; in a large sense, it is where he has his true, fixed, and permanent home, to which, when absent from it, he intends to return, and from which he has no present purpose to remove. Two things, then, must occur to constitute a domicile — first, residence, and second, the intention to make it a home — the.fact and the intent.” S. v. Carter, 194 N. C., 293; S. c., 195 N. C., 697.

In Watson v. R. R., 152 N. C., 215 (217), it is written: “Probably the clearest definition is that in Barney v. Oelrichs, 138 U. S., 529: ‘Residence is dwelling in a place for some continuance of time, and is not synonymous with domicile, but means a fixed and permanent abode or dwelling, as distinguished from a mere temporary locality of existence ; and to entitle one to the character of a “resident,” there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purpose.’ To same effect, Coleman v. Territory, 5 Okla., 201: ‘Residence indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. “Residence” indicates the place where a man has his fixed and permanent abode and to which, whenever, he is absent, he has the intention of returning.’ In Wright v. Genesee, 117 Mich., 244, it is said: ‘Residence means the place where one resides; an abode, a dwelling or habitation. Residence is made up of fact and intention. There must be the fact of abode and the intention of remaining.’ And in Silvey v. Lindsay, 42 Hun. (N. Y.), 120: ‘A place of residence in the common-law acceptation of the term means a fixed and permanent abode, a dwelling place for the time being, as contradistinguished from a mere temporary local residence.’ ” In re Ellis, 187 N. C., 840 (842).

Under the well settled law, as above set forth, the court below found the facts upon sufficient and competent evidence — this is binding on us.

*204In Walson’s case, supra, it is said (p. 217) : “Tbe facts found by tbe judge aré conclusive upon us. He found tbat plaintiff was living at Spencer from March to May, when tbe injury occurred, as a car repairer, in tbe defendant’s service, under a contract teminable at tbe will of either party, and tbat be bad never intended to change bis residence from Wayne County. Upon these facts, be properly held tbat tbe plaintiff retained bis residence in Wayne, and refused tbe motion to remove. It was competent for tbe plaintiff to testify to bis intent. Hannon v. Grizzard, 89 N. C., 116.”

In Bigham v. Foor, 201 N. C., 14 (15), is tbe following: “Upon tbe facts found by tbe trial court, which are conclusive on appeal, as they are supported by competent evidence (Hennis v. Hennis, 180 N. C., 606), there was no error in bolding tbat tbe defendant was a nonresident of tbe State within tbe meaning of chapter 75, Public Laws 1929, at tbe time of tbe collision between her automobile and tbe truck driven by tbe plaintiff. Brann v. Hanes, 194 N. C., 571; Gower v. Carter, 195 N. C., 687; S. v. Garter, 194 N. C., 293; Roanoke Rapids v. Patterson, 184 N. C., 135; Hannon v. Grizzard, 89 N. C., 116.”

In tbe briefs of tbe litigants tbe law on tbe subject is practically admitted. Tbe application of tbe law to tbe facts is tbe bone of contention. Tbe court below found tbe facts upon sufficient competent evidence against defendant’s contention, and we must be governed by this.

Tbe removal of a case from one county to another for tbe convenience of witnesses is discretionary with tbe trial judge. Belding v. Archer, 131 N. C., 287; Eames v. Armstrong, 136 N. C., 392; Oettinger v. Live Stock Co., 170 N. C., 152. In Craven v. Hunger, 170 N. C., 424 (426), it is said: “Tbe statute is explicit tbat tbe judge ‘may’ remove tbe cause to another county when it appears tbat tbe convenience of witnesses or tbe ends of justice may be served thereby. Tbe language of itself makes it a matter of discretion in tbe court, and in tbe only four cases in which tbe matter has ever been contested by appeal, this Court has sustained tbe plain meaning of tbe words as giving tbe judge a discretionary power.” A motion for tbe removal of a cause from one county to another for convenience of witnesses and to promote tbe ends of justice under this section is addressed to tbe sound discretion of tbe trial judge, and is not subject to review in tbe Supreme Court. Western Carolina Power Co. v. Klutz, 196 N. C., 358; Causey v. Morris, 195 N. C., 532. Except upon abuse of this discretion. Grimes v. Fulton, 197 N. C., 84.

For tbe reasons given, tbe judgment of tbe court below is

Affirmed.

WiNBORNE, J., took no part in tbe consideration or decision of this case.