110 F. 803 (D.S.C. 1901), Coker v. Monaghan Mills

Citation:110 F. 803
Party Name:COKER v. MONAGHAN MILLS et al.
Case Date:September 17, 1901
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 803

110 F. 803 (D.S.C. 1901)

COKER

v.

MONAGHAN MILLS et al.

United States Circuit Court, D. South Carolina.

September 17, 1901

Carey & McCullough, for plaintiff.

Haynsworth & Patterson and Wm. G. Sirrine, for defendants.

SIMONTON, Circuit Judge.

This case comes up on a petition of the Flynt Building & Construction Company, a corporation of the state of Massachusetts, praying that the plaintiff be enjoined from proceeding any further against it in the state court, because it has filed the record in this court after a petition for removal, with

Page 804

proper bond. This motion has been here before. But it appeared that, although the petition for removal had been filed with the clerk of the state court, it never had been presented to the state court itself, no term of that court having been held since it was filed. Under these circumstances, in deference to the state court, this court declined to entertain the motion, and so anticipate or forestall the action of the state court. But it also appearing that, notwithstanding the filing of the petition and notice thereof, the plaintiff was pressing her case in the state court, and insisting on certain notices, and so assuming to anticipate the action of the state court, this court, having the parties before it on this motion, entered an order enjoining any action of the part of the plaintiff until the state court had received, considered, and decided upon the petition for removal. The case will be stated in full. There are two questions: (1) Is the cause removable at the instance of the petitioner, on the ground that there is a separable controversy? (2) If so, will this court enjoin further proceedings in the state court, which has denied the petition for removal?

The action is brought by Margaret Coker, as administratrix, for damages resulting from the death of her son, James H. Coker, who died intestate. The complaint has 20 paragraphs. The first two set out the corporate character of the two defendant corporations, the Monaghan Mills, a corporation of the state of South Carolina, and the Flynt Building & Construction Company, a corporation of the state of Massachusetts, the two defendants. The third to the fourteenth paragraphs, inclusive, set out the cause of action against the Monaghan Mills as follows: That it is the owner of a certain brick building, three stories high, constructed for the purpose of manufacturing cotton goods, in which it was engaged in having certain machinery and other appliances placed...

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