Sparkman v. Supreme Council Am. Legion of Honor

• Decision Date: 21 March 1900
• Citation: 35 S.E. 391,57 S.C. 16
• Parties: SPARKMAN v. SUPREME COUNCIL AMERICAN LEGION OF HONOR.
• Court: South Carolina Supreme Court

35 S.E. 391

57 S.C. 16

SPARKMAN v. SUPREME COUNCIL AMERICAN LEGION OF HONOR.

Supreme Court of South Carolina

March 21, 1900

Appeal from common pleas circuit court of Georgetown county; W. C Benet, Judge.

Action by Julia B. Sparkman against the Supreme Council American Legion of Honor. Judgment for plaintiff, and defendant appeals. Affirmed.

Walter Hazard, for appellant.

Huger Sinkler, J. N. Nathans, Jr., and M. L. Bonham, for respondent.

GARY A. J.

The record contains the following preliminary statement of the case: "This action was commenced in the court of common pleas for Georgetown county on March 2, 1899, for the recovery of $5,000 alleged to be due by the defendant to the plaintiff upon a benefit certificate issued by defendant to the plaintiff's husband, George E. T. Sparkman, M. D., with interest from date of death, May 29, 1898. The action was tried at the June (special) term of the court, on June 19-21, 1899, before a jury, his honor, Judge W. C. Benet presiding. The jury found a verdict in favor of the plaintiff for the sum of $5,371.53. The case was called by the presiding judge about 4 o'clock p. m., on Monday, June 19th. The defendant's attorney moved that the cause be withdrawn from the said court, and removed to the circuit court of the United States for the district of South Carolina, on the ground of prejudice and local influence." He presented in support of the motion a petition, together with the bond executed in accordance with the requirement of the federal statutes. The defendant appealed upon numerous exceptions, the first two of which are as follows: "Because it is respectfully submitted his honor, the presiding judge, erred in refusing the defendant's motion made on the 19th of June that the case be withdrawn, and that the court of common pleas refuse to entertain further jurisdiction thereof, in consequence of the removal of the same into the circuit court of the United States for the district of South Carolina, it having been made duly to appear to the court that proper papers for the removal of the cause to the United States court had been forwarded to Charleston on Saturday, the 17th June 1899, and were presumably on file in the said United States court at the time said motion was made. (2) Because, the defendant having renewed its motion for a stay of proceedings and for the removal of the cause to the United States circuit court on the morning of June 20, 1899, before the taking of testimony had been begun and having informed the court that, as a matter of fact, the petition for removal, pursuant to the federal statute, had been filed in the United States circuit court before the call of this case on the proceeding day, to wit, on June 19, 1899, it was error in the presiding judge to again refuse said motion, and order the cause to proceed to trial; whereas, it is respectfully submitted upon the filing of the petition in the federal court on June 19, 1899, the latter court had eo instanti acquired jurisdiction of the cause, and the state court should have proceeded no further therein, until the action of the federal court upon the petition for removal had been made to appear by competent evidence." In the case of Pennsylvania Co. v. Bender, 13 S.Ct. 591, 37 L.Ed. 441, Mr. Justice Brewer, for the court, thus lays down the proper practice in such cases: "The act of 1887 (24 Stat. 553, § 2) established a different procedure as follows: "Any defendant *** may remove such suit into the circuit court of the United States for the proper district, *** when it shall be made to appear to said circuit court that, from prejudice or local influence he will not be able to obtain justice in such state court.' There is no specific declaration when proceedings in the state court shall stop. The right to a removal is determined by the federal court, and determined upon evidence satisfactory to it. When it is satisfied that the conditions exist, the defendant may remove. How? The proper way for him is to obtain an order from the federal court for the removal, file that order in the state court, and take from it a transcript, and file it in the federal court. It may be said that these steps are not, in terms, prescribed by the statute. That is true, and also true that no specific procedure is named. The language simply is that the defendant may remove when he has satisfied the federal court of the existence of sufficient prejudice. The statute being silent, the general rule in regard to the transfer of cases from one court to another must obtain. If the order of one court is to stay the action of another, the latter is entitled to notice. If a case is to pass from one court to another, this is done by filing a transcript of the record of the one in the other. Virginia v. Paul, 148 U.S. 107, 13 S.Ct. 536, 37 L.Ed. 386. Such orders and transfers are generally in appellate proceedings, yet something of the same kind is appropriate and necessary in the orderly administration of affairs to transfer, by order of a federal court, a case from the state court to itself. Certainly, this statute does not abolish the law of comity, which controls the relations of courts of two sovereignties exercising jurisdiction within the same territorial limits, nor does it abolish the duty of counsel to seasonably advise the courts of which they are counsel of any matters which, if known, would prevent an erroneous exercise of jurisdiction. At any rate, if these exact steps are not requisite something equivalent thereto is. If there had been more attention paid to these matters in removal proceedings, there would have been less irritation in state tribunal, at removals."

The stenographer being absent at the convening of the court, his honor, Judge Benet, thus stated what took place in regard to the removal proceedings: "I will now make a statement of what occurred yesterday afternoon. On the call of the calendar No. 1, this case was marked for trial. Counsel on both sides were asked if they were ready. Counsel for the plaintiff and the defendant both announced 'ready.' Thereupon jury No. 1 were put in charge of the case. Counsel for the defendant requested the jury be sworn on their voir dire, and, just before the oath was administered, begged leave to move that the case be withdrawn on the ground that he had sent the proper papers for the removal of the cause to the United States court; that they had been sent to Charleston on Saturday, with instructions that they should be filed forthwith; and he read an affidavit on information and belief. Counsel stated on information and belief that the papers had been filed; that it was a mere expectation or a presumption that they had been filed, but he could not say, as a matter of fact, that they had been filed. The court ruled that, in the absence of proof that the federal court had acquired jurisdiction of the case, the case should go on to trial in this court, this court having jurisdiction. In addition, it should be stated that counsel on both sides were asked if they had any objections to jury No. 1. Each side had the opportunity to exercise its right to challenge, and plaintiff exercised it, while the defendant announced that it had no objection to the jury. The jury were then sworn on their voir dire. Thereupon counsel for the plaintiff adduced the first witness for the plaintiff." The presiding judge followed the proper practice in retaining jurisdiction of the case, and these exceptions are overruled.

The third exception is as follows: "Because it is respectfully submitted his honor, the presiding judge, erred in overruling the defendant's objection to the following question propounded by the plaintiff's attorney to the witness J. I. Hazzard, collector of Prince George Council, A. L. of H., and in permitting said question to be asked, viz.: 'When did you make that record there, where the name of G. E. T. Sparkman is marked, "Suspended,"--what time?' Whereas, it is submitted that, inasmuch as the laws, of the appellant order contain no provision making it the duty of the collector of a subordinate council to enter the suspension of a member upon his book, and suspensions take effect by said laws ipso facto upon nonpayment of assessments, it was and is immaterial upon what date the said entry was made by the collector." If, as appellant contends, suspensions take effect, under the laws of the association, ipso facto upon nonpayment of the assessments, and testimony was immaterial, then it was not prejudiced by its introduction. There is, however, another reason why the exceptions cannot be sustained. While Mr. J. I. Hazzard, a witness for the defendant, was being examined by the defendant's attorney, the following took place: "Q. Please refer to book, and state what entry you have on it. A. Entry on the book is: 'Date, April 1st, '98. Assessment No. 8. G. E. T. Sparkman, $9.00.' Q. Is there any other entry there? A. 'Suspended April 30th,' the last day the payment was due." As the appellant introduced the entry in evidence, it ought not to complain if the respondent brought out all the facts as to the manner and time in which it was made.

The fourth exception is as follows: "Because it is respectfully submitted the presiding judge erred in overruling the defendant's objection to the following question, addressed by the plaintiff's counsel on the cross-examination to the witness J. I. Hazzard, collector of the subordinate council, A. L. of H.: 'Do all of the members of this lodge go to your office to pay their assessments?' Whereas, there being no provisions in the laws of the order requiring the collector of a subordinate council to call on the members for their assessments, but, on the contrary, the law providing explicitly that all members shall pay their assessments...