Gardner v. Gardner

Judge VAUGHN

dissenting.

I do not find the two foreign cases relied on by the majority either authoritative or persuasive. In the first place, neither case applies a statute as explicit as the one in question. Moreover, in *683 People v. Pinches, supra, the California Court was considering a trial court order respecting venue that had been entered prior to the enactment of the venue amendment. As the Court pointed out, it is perfectly obvious that the amendment could have no bearing on the merits of the appeal from that order. Here, of course, the appeal is from an order entered after the enactment of the amendment and obeying its mandate. In Osborn Funeral Home v. Louisiana State Board of Embalmers, supra, a decision of an intermediate appeals court in Louisiana, the Court based its decision on its understanding of the Louisiana Constitution and statutes. Among other things, the Court said that under its statute the venue motion was not timely because it was not filed until after answer on the merits had been filed.

I respectfully suggest that the judgment in the case should be affirmed. In her response to defendant’s motion for a change of venue, plaintiff asserted only that she could not have a fair trial in Johnston County. No questions conerning the constitutionality of the statute were raised or passed upon in the trial court. I assume it is for that reason that the majority does not discuss the constitutional questions appellant seeks to argue on appeal. “Since the constitutionality of the statute in question was not passed upon in the trial court, it was not properly before the Court of Appeals and is not now properly before us.” City of Durham v. Manson, 285 N.C. 741, 743 , 208 S.E. 2d 662, 664 (1974).

The majority, correctly I believe, concludes that the statute is mandatory, that it is procedural and that it may be applied retrospectively to pending litigation. The majority holds, nevertheless, that it does not apply to this case. It is here that we disagree. It seems to me that the amendment was tailor-made for the case at bar, and I do not understand the majority to say that it was beyond the power of the General Assembly to enact the amendment. At the time the action was commenced, the applicable statute, G.S. 50-3, provided that the summons was returnable to the county in which either plaintiff or defendant resided. Defendant resided in Johnston. Plaintiff alleged that she was a resident of Wayne and the summons was returned there. The 1978 amendment to G.S. 50-3 made no changes in this procedure so long as plaintiff remained a resident of the State: It does provide a procedure, however, for a change of venue to the county of *684 defendant’s residence of plaintiff thereafter becomes a nonresident. The parties stipulated that plaintiff became a nonresident. The act expressly provides that “the action may be removed upon motion of the defendant, for trial or for any motion in the cause, either before or after judgment, to the county in which the defendant resides. The judge, upon such motion, shall order the removal of the action . . . .” G.S. 50-3.

I do not agree that the earlier decisions on venue take the case out of the operation of the statute. All that the first venue hearing determined was that Wayne County was the county in which plaintiff then resided. That decision is not under attack here. The other venue hearing determined that the convenience of witnesses and ends of justice did not require a change of venue to Johnston. That decision is not under attack here. The statute has not been changed with respect to where a summons may be returned. It only provides a procedure for a change in venue when a plaintiff changes her or his status from that of a resident to a nonresident. I believe that the late Judge Hardy correctly followed the mandate of the statute and would affirm his judgment.