Rankin v. Allison

Eodmaít, J.

(After stating the case as above.) It was said for the plaintiff in this Court, that the answer was properly disregarded, because it was not properly verified; but, as the complaint was amended in a material part after it had been sworn to, it was in effect, not sworn to: consequently the answer did not require to be verified by affidavit.

2. Every action must be brought to the Superior Court of the County where the plaintiff or defendant resides: 0. C. P. §§. 74, 68; Acts, 1868-’69; and if both reside in the same county, it must, of course, be brought in that county. If an action be brought in the wrong county, it may, on the written application of the defendant, be transferred to the right one: C. 0. P. §. 69.

We might regard the answer in this case as such an application ; but then it does not allege that Eankin, the plaintiff of record, resides in Iredell County, and consequently, as for such a purpose the Court can only look at the parties of re *675 cord, it could not be allowed. We must, therefore, consider whether regarded as an answer in bar, it sets forth a sufficient defence. It admits the assignment to Eankin, but alleges that John S. McEorie, an infant, is the owner; it does not state how he became owner, or that he is the owner of the legal, or only of an equitable estate: we are obliged, therefore, to construe the allegation of ownership in John as consistent with the ownership admitted in Eankin, and the result is that Eankin took an assignment to himself as trustee for, or, as guardian of, the infant. Taking that to be so, by sections 57 and 28, C. C. P., Rankin, as the trustee of an express trust, must bring the suit. We do not see that the answer states any sufficient defence. The judgment below must be affirmed.

Pee Cueiam. Judgment affirmed.