{
  "id": 8690011,
  "name": "State on relation of JOHN B. CLOMAN v. ARCHIBALD STATON and others",
  "name_abbreviation": "State ex rel. Cloman v. Staton",
  "decision_date": "1878-01",
  "docket_number": "",
  "first_page": "235",
  "last_page": "237",
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    {
      "type": "official",
      "cite": "78 N.C. 235"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "69 N. C. 412",
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        8686231
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        2085475
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  "last_updated": "2023-07-14T19:04:18.240606+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "State on relation of JOHN B. CLOMAN v. ARCHIBALD STATON and others."
    ],
    "opinions": [
      {
        "text": "Reade, J.\nThere is no doubt that Edgecombe, where the plaintiff lived, was not the proper County, and that Martin where the defendant lived, aod gave his guardian bond, was the proper County in which to try the suit upon the guardian bond. C. C. P. \u00a7 68 (a); Stanly v. Mason, 69 N. C. 1; Steele v. Commissioners of Rutherford, 70 N. C. 137. A guardian bond is an \u201c official bond \u201d within the meaning of the .statute.\nIn the cases heretofore before the Court, the main question was as to the proper County, but in this case the question is \u25a0also made as to the time and manner of raising the question, and the party which is to raise it.\nIt seems that upon the return of the summons to the wrong County, the right of the defendant is \u201c to demand that the trial be had in the proper County.\u201d If he does not so demand, then the action may go on and be tried in the wrong County. C. C. P. \u00a7 69.\nThe defendant did not move to \u201c remove to the proper County,\u201d but his motion was to dismiss the action so that it could not be tried in either County. Where\u00e1s the statute .says that it may be tried in the wrong County to which it is brought unless the defendant will move to \u201c remove to - the proper County.\u201d\nIt is true that in the eases cited, the defendant\u2019s motion was to dismiss, as in this case, and they were dismissed. But the point was not made that the proper motion was to \u25a0\u201c z\u2019emove \u201d and not to dismiss.\nIn Jones v. Commissioners of Bladen, 69 N. C. 412, an erroneous report of the case puts the Court in the fault of -overlooking a point in the case. The report says that there \u25a0was a motion below not only to dismiss but to remove, and the counsel\u2019s brief says the same thing, while in the opinion of the Court it is stated that the motion to dismiss was the only point. I find in looking into the original papers that the opinion of the Court was right. The record shows: that the only motion was\u2019to dismiss, and the Judge\u2019s ease states' the same.\nThe object in those cases seemed to be to determine only the question as to which was the proper County. But here the point was raised and insisted on by the plaintiff that if Edgecombe was not the proper County, and Martin was,, then that it ought to be removed to Martin. And that distinguishes this case from the others.\nThe plaintiff brought his action in Edgecombe, where he-was willing to try it, and where it was triable, unless the' defendant should demand that it should be tried in Martin. He did not demand that it should be tried in Martin, but objected to its being tried at all, and His Honor dismissed it. In this there was error. Ills Honor ought to have treated it as\"a motion to remove, and removed it accordingly.\nThe objection that the plaintiff did not move in apt time, i. e., not until after the order dismissing the action, has no-force in it; for the reason that the plaintiff was not obliged, to moveffor removal at all. It was for the defendant to> make that^motion, and upon his failure to do so, the case might have been tried in Edgecombe. Or under sub-division (1) of \u00a7 69 C. C. P., the Court might have removed the case upon the suggestion of either party, or probably mere\u00bb motil.\nThere is error. This will be certified, <fcc.\nPer CuriaM. Judgment reversed..",
        "type": "majority",
        "author": "Reade, J."
      }
    ],
    "attorneys": [
      "Messrs. Geo. Howard\u201e Gilliam \u00a3 Gatling, and J. L. Bridgers, -Jr., for plaintiff.",
      "Mr. Jas. E. Moore, for defendants."
    ],
    "corrections": "",
    "head_matter": "State on relation of JOHN B. CLOMAN v. ARCHIBALD STATON and others.\nPraetiee \u2014 Guardian Bond \u2014 Removal of Action Brought in Improper' County.\n1. A guardian bond is an offlcialbond within the meaning of 0. 0. P. \u00a7 65, (a).\n2. An action upon a guardian bond, brought in a County other than the one wherein the bond was given, is triable in such County un- - less the defendant moves to remove the action to- the proper County-\n8. In such case a motion by the defendant to dismiss the action should, be treated as a motion to remove.\n(Stanly v. Mason, 69 N. C. 1; Steele v. Commissioners of Rutherford 70 N. C. 187 ; Jones v. Commissioners of Bladen, 69 N. C. 412, cited distinguished and approved.) ,\n- Civil Action tried at Eall Term, 1877, of Edgecombe Superior Court, before Cannon, J.\n' This was an action upon a guardian bond executed by the-defendants. Upon return of the summons the defendants-\u25a0 moved to dismiss the action, for that,/the bond and returns-of the guardian were made in the C'hnty of Martin, where\" the guardian qualified and residedMand insisted that the action should have been brougb/f, in Martin instead of' Edgecombe. The plaintiff resisted' the motion, contending that the plaintiff being a resident of Edgecombe, the venue-was properly laid; and that ft most the action could only be removed to Martin for t n' 1 if tLq defendants should move for a removal. The Court iheing of opinion with defendants, dismissed the action, a\\ntt thereupon the plaintiff\u201d askedHisHonortoremove.it to Martin for trial, which-was refused, and the plaintiff appealed.\nMessrs. Geo. Howard\u201e Gilliam \u00a3 Gatling, and J. L. Bridgers, -Jr., for plaintiff.\nMr. Jas. E. Moore, for defendants.\nSmith, C. J. having been of counsel did not sit on the hearing of this case."
  },
  "file_name": "0235-01",
  "first_page_order": 251,
  "last_page_order": 253
}