Poteat v. Southern Railway Co. , 33 N.C. App. 220 ( 1977 )

HEDRICK, Judge.

G.S. 1-83 in pertinent part provides

“The court may change the place of trial in the following cases:

(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.”

The plaintiff in the present case designated Guilford County as the place of trial. In his order changing the place of trial, Judge McConnell declared that “ . . . Rockingham County [is] the proper county for the trial of this action . . . . ” While the record may support the court’s conclusion that Rock-ingham County is a proper venue, this conclusion does not support the order removing the case under G.S. 1-83(1), since the court did not find or conclude that Guilford County was not a proper place of trial. Indeed, on the record before us, Guilford County is a proper place of trial whether venue is determined under G.S. 1-81 or G.S. 1-82.

The trial court clearly has authority to change the place of trial of an action pursuant to the provisions of G.S. 1-83 (2) to promote the convenience of witnesses and the ends of justice. However, our courts have consistently held that the court has no authority to entertain a motion under this section of the statute until an answer has been filed. Thompson v. Horrell, 272 N.C. 503, 158 S.E. 2d 633 (1968); Lowther v. Wilson, 257 N.C. 484; 126 S.E. 2d 50 (1962); Indemnity Co. v. Hood, Comr., 225 N.C. 361, 34 S.E. 2d 204 (1945). Although this rule has been characterized as “hypertechnical,” 1 McIntosh, North Carolina Practice and Procedure, § 834, n. 32 (Supp. 1970), we feel compelled to follow the rule and hold Judge McConnell erred in allowing defendants’ motion for a change of venue to promote the convenience of witnesses and the ends of justice, since no answer has been filed in this case.

For the reasons stated the order appealed from is

Reversed.

Judge Morris and Arnold concur.