Wayne County NcArchives Court.....Charlie Games, G. L. Edgerton V. 1906
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Connie Ardrey n/a December 2, 2011, 9:34 am

Source: N C Reports
Written: 1906

Edgerton v. Games

(Filed October 9, 1906)

Recovery of Personal Property - Venue - Removal

Where a complaint sets out three different causes of action, one of which is 
for the recovery of personal property, the Court properly granted the 
defendant's motion to remove the cause to the county in which such property is 
situated.

Action by G. L. Edgerton and another against Charlie Games, heard by Judge W. 
B. Council at the April Term, 1906, of the Superior Court of Wayne, on a 
motion by the defendant to remove the cause to Johnston County for trial. From 
the order of removal the plaintiffs appealed.

W. C. Munroe for the plaintiffs.
Dortch & Barham and J. A. Wellons for the defendant.

NC Supreme Court Justice Clark, C. J. - The complaint alleges that the 
defendant procured a horse from the plaintiffs in Goldsboro on an agreement 
that if the plaintiffs would let him take the horse to his home in Johnston 
County to see if he would plow, and if he liked the horse he would bring him 
back the following Monday and would give plaintiffs in exchange a horse which 
he left with them and $80; that the defendant has not returned the horse, and 
has refused on demand to give him up, and that the defendant obtained the 
possession of the horse by false and fraudulent representations, with the 
fraudulent intent to defraud plaintiffs, and asks for judgment for $80, for a 
decree that the horse of defendant left in their possession be decreed their 
property; that it be adjudged that they have a lien upon the horse defendant 
has for $80, and that he be sold to pay the same; that they recover possession 
of their horse in possession of defendant and for recovery of $500 damages. 
Ancillary proceedings in claim and delivery were taken out. The defendant gave 
bond and retained possession of the horse.

The plaintiffs have practically set out three different causes of action, 
though they are not separately and distinctly stated and numbered: 

1. Affirming the "swap," asking for judgment for $80 boot, and that the 
defendant's horse left with them be decreed to be their property, and for 
declaration of a lien for $80 on the horse the defendant has in possession.

2. Disaffirming the contract, and seeking to recover the horse, the defendant 
carried off.

3. Alleging that the defendant obtained the horse by fraud and 
misrepresentation, and asking his recovery and $500 damages.

Whether his Honor was correct in holding that the second was the chief cause 
of action, it is certainly one cause of action, and the Judge properly granted 
the defendant's motion to remove the cause to Johnston County. The cause 
differs vitally from Woodard v. Sauls, 134 NC, 274. In that case there was but 
one cause of action, the recovery of the amount due plaintiff on a promissory 
note, and the recovery of sundry collaterals was asked for the purpose of 
applying their proceeds to the discharge of the judgment on the note. Here, on 
either the first or third cause of action, there is no legal ground to recover 
possession of the horse. That could be had only upon the second cause of 
action, and if had upon that cause of action the horse could not be applied, 
as in Woodard v. Sauls, supra, upon any recovery upon the other causes of 
action.

No error.

Additional Comments:
In the NC Supreme Court Fall Term 1906

File at: http://files.usgwarchives.net/nc/wayne/court/charlieg2084gwl.txt

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