Miller v. . Miller , 205 N.C. 753 ( 1934 )

STACY, C. J., concurs in result. The plaintiff brought suit in the municipal court of the city of High Point in Guilford County, under C. S., 1667, for alimony without divorce. The defendant moved for removal of the cause to Vance County for the alleged reason that both parties reside there. Evidence was offered by each party and the clerk of the municipal court denied the motion. On appeal the judge of the municipal court found as a fact that the plaintiff is a resident of High Point in Guilford County and denied the motion for removal. An appeal was then taken to the Superior Court and Judge Sink affirmed the judgment. Whether his ruling is correct is the only question in the record. The defendant excepted and appealed. It is alleged in the complaint that the defendant forced the plaintiff to leave his home at night and that she was compelled to take refuge in the home of a neighbor. Under these circumstances she could acquire a separate domicile. Rector v. Rector, 186 N.C. 618; S. v. Beam, 181 N.C. 597.

The venue of an action is a matter of statutory regulation. C. S., 463,et seq. Among these statutes section 469 is the only one which has direct bearing on the motion. It provides that "in all other cases" the action must be tried in the county in which the plaintiffs or the defendants, or any of them reside; and in section 1657 it is said that in all actions for divorce the summons shall be returnable to the court of the county in which either the plaintiff or the defendant resides. In a proceeding for alimony without divorce (C. S., 1667) "The wife may institute an action in the Superior Court of the county in which the cause of action arose"; but in Rector v. Rector, supra, the Court held that the word "may" is permissive and not mandatory. Sustaining an action brought by the wife in a county other than that of the husband's residence the Court said: "The Legislature cannot reasonably be supposed to intend that a wife who is forced to go elsewhere than her husband's domicile to obtain food and shelter must bring an action in the county where her husband resides, and which she was forced to leave, and which he could change at will. She had a right, even under the agreement, to live where she desired. The defendant was to furnish subsistence and support to his wife wherever she lived, which in this case was Buncombe County. Her means are limited, and the cause of action actually arose in Buncombe, for it is the duty of a debtor to make payment at the home of the creditor, and on failure to do so, the cause of action arose there." Judgment

Affirmed.