Noland Company v. Laxton Construction Company , 244 N.C. 50 ( 1956 )

92 S.E.2d 398 (1956) 244 N.C. 50

NOLAND COMPANY, Incorporated,
v.
LAXTON CONSTRUCTION COMPANY, Incorporated and United States Casualty Company.

No. 459.

Supreme Court of North Carolina.

May 2, 1956.

A. L. Purrington, Jr., Raleigh, for plaintiff appellee.

Lassiter, Moore & Van Allen, Charlotte, for defendant appellants.

BARNHILL, Chief Justice.

The decisive question in this case is this: Was plaintiff's principal office and place of business located in Wake County on 19 April 1955, the day this action was instituted? The court below answered in the affirmative. We are constrained to hold to the contrary.

Our law of corporations is in large measure contained in ch. 55 of the General Statutes. Provisions therein referring to suits in behalf of or against domestic corporations and foreign corporations which have submitted to domestication must be read in pari materia, subject to the limitation that domestication does not deprive the Federal courts of their jurisdiction in respect to foreign corporations.

Domesticated corporations may sue and be sued under the laws which apply to domestic corporations. Hill v. Atlantic Greyhound Corp., 229 N.C. 728, 51 S.E.2d 183; Smith-Douglass Co. v. Honeycutt, 204 N.C. 219, 167 S.E. 810.

The location of the principal office and place of business of a corporation is a fact. The instrument a foreign domesticated corporation is required to file in the office of the Secretary of State, G.S. § 55-118, is merely notice of that fact. It is not required for the benefit of the corporation but for the information of the public. And it does not, in and of itself, fix the location of the place of business of the corporation which files the same. Herein is where the court below fell into error.

The principal office and place of business of plaintiff has been in Durham County since sometime prior to 21 March 1955. This is established by its own solemn declaration in writing. It will not be permitted to take advantage of its own neglect for more than eighteen days to so inform the Secretary of State as required by G.S. § 55-118 and assert that because it neglected to act promptly in this respect its principal office and place of business continued to be and remained in Wake County. It is estopped by its own declaration to so contend, and, in any event, its contention is without foundation.

Since the plaintiff instituted this action in a county other than in the county of its residence where it maintained its principal office and place of business, defendants were and are entitled to have this cause removed to Mecklenburg County as a matter of right.

"Considering the statutes in pari materia, it has been consistently held by this Court that where the plaintiff is not a resident of the county in which an action is instituted, or is not otherwise entitled to maintain the action therein as a matter of right, the defendant may require the removal of the cause to the county of his residence by complying with the terms of the statute. When the motion to remove to the county of the residence of the defendant, the action not having been brought in the proper county, is made, the question of removal is not one of discretion, but `may' means shall, or must, and it becomes the duty of the judge to remove the cause. [Cases cited.]" Atlantic Coast Line R. Co. v. Thrower, 213 N.C. 637, 197 S.E. 197, 198; Teer Co. v. Hitchcock Corp., 235 N.C. 741, 71 S.E.2d 54; Roberts & Hoge v. Moore, 185 N.C. 254, 116 S.E. 728; Mcintosh, N.C. P & P, 279, sec. 295.

It is a matter of common knowledge that Mecklenburg County is bordered by the northern line of South Carolina, and that Chester, S. C., is a town in South Carolina near Charlotte, the county seat of Mecklenburg County. Hence it would seem that the court below might well have granted the motion to remove for the convenience of witnesses. However, whether this motion should be granted rested in the sound discretion of the court below, and we do not hold that it abused its discretion in declining to remove for this cause.

An order will be entered removing this cause to Mecklenburg County for trial. To that end the judgment entered in the court below is

Reversed.

JOHNSON, J., not sitting.