#### HOVSEP PUSHMAN v. E. P. DAMERON, Administrator of BARRUR H. SERUNIAN, Deceased.

(Filed 26 June, 1935.)

Venue O a — Trial court lias discretionary power to grant motion for change of venue in action instituted against personal representative.

While an action against an executor or administrator must be instituted in the county in which defendant gave bond, O. S., 465, the statute does not iweclude the court from changing the venue to another county, in his discretion, for the convenience of witnesses and the promotion of the ends of justice, upon motion properly made under O. S., 470 (2), and since plaintiff is bound to institute the action in the county in which defendant gave bond, his act in so doing cannot be imputed to him as a voluntary choice of venue, so as to prevent the lodging of a motion under O. S., 470 (2).

Civil actioN, before *McElroy, J.,*at February Term, 1935, of GtriL-EORD.

Tbe plaintiff instituted this action against tbe defendant to recover damages for personal injuries resulting from tbe reckless driving of an automobile by defendant’s intestate. Tbe action was instituted in Guilford County. Tbe accident occurred near Fletcher, in Henderson County, and defendant’s intestate was killed. After tbe action bad been filed and tbe cause at issue, tbe plaintiff made a motion “to transfer and remove tbe above-entitled cause from tbe Superior Court of Guilford County to tbe Superior Court of Buncombe County for trial, for tbat: ‘(1) Convenience of witnesses will thereby be greatly promoted, and (2) tbe ends of justice will thereby best be served.’ ” After bearing affidavits and argument of counsel, the trial judge found “as a fact tbat tbe convenience of witnesses and tbe ends of justice would be promoted by a removal of this cause to Buncombe County for trial.”

Notwithstanding, bis Honor was of tbe opinion tbat “under tbe provision of tbe statute of tbe State of North Carolina it is mandatory tbat this cause be retained for trial in Guilford County, and tbat, therefore, tbe court is without power to grant tbe plaintiff’s motion for removal,” etc.

From judgment retaining tbe cause in Guilford County tbe plaintiff appealed.

*Adams & Adams for plaintiff.*

*Smith, Wharton & Hudgins for defendant.*

BrogdeN, J.

When an action has been instituted against a personal representative of decedent, in tbe proper county, to recover damages for *337personal injuries due to tbe negligence of sucb decedent, has the trial judge, upon proper motion made in apt time, the power to remove the cause for trial to another county?

It does not appear from the record that the administrator of deceased ever gave bond in Guilford County, where the action was begun. But this seems to be admitted in the briefs, and the question of law involved will be discussed upon the assumption that the defendant duly qualified and gave bond in Guilford County.

The solution of the legal proposition depends upon the construction to be given C. S., 465. This statute provides that all actions “against executors and administrators in their official capacity must be instituted in the county where the bonds were given,” etc. C. S., 470, provides that “the court may change the place of trial in the following cases: ‘Subsection 2. When the convenience of witnesses and the ends of justice would be promoted by the change.’ ” Obviously, the excerpt from C. S., 470, would warrant the court in changing the place of trial for either party, if it should be found that the convenience of witnesses and the ends of justice will be promoted by such change. The defendant, however, insists that the wording of O. S., 465, requiring that actions against administrators “must be instituted in the county,” etc., is mandatory. Consequently, a judge would have no power to change the place of trial for any purpose. Furthermore, it is contended that a contrary holding would make it possible that an administrator or executor could be harried about the State from one county to another for purposes of trial.

This Court is not disposed to adopt that view of the law. It was held in *Latham v. Latham,*178 N. C., 12, 100 S. E., 131, that the words of C. S., 465, “must be instituted in the county” did not necessarily mean that the cause should be actually tried in such county. While such distinction may not have been absolutely pertinent to the decision of the *Latham case, supra,*nevertheless such distinction appears to be sound.

The plaintiff was compelled to institute his action in the Superior Court of Guilford County by reason of the mandate of the statute, and his act in so doing could not therefore be imputed to him as a voluntary choice of venue so as to prevent him from lodging a motion for removal.

The Court is of the opinion, and so holds that the trial judge in the exercise of a sound discretion, had the power, upon finding the necessary facts, to remove the cause to another county for trial.

Reversed.