Hollingsworth v. Southern Ry. Co

• Decision Date: 17 April 1900
• Citation: 57 S.C. 453,35 S.E. 739
• Parties: HOLLINGSWORTH v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

35 S.E. 739

57 S.C. 453

HOLLINGSWORTH

v.SOUTHERN RY. CO.

Supreme Court of South Carolina.

April 17, 1900.

REMOVAL, OP CAUSE—FORUM WHERE PENDING—SECOND ACTION—PLEA IN ABATEMENT.

The removal of a cause from a state court to a United States circuit court is a removal for trial, merely; and such cause is still pending in the state court, so as to render a plea in abatement to a second action for the same injury, based on the pendency of the first cause, proper, though such cause is alleged in the plea to be pending in the United States circuit court. Gary, A. J., dissenting.

Appeal from common pleas circuit court of Greenwood county; Ernest Gary, Judge.

Action by Mary Hollingsworth, as administratrix of the estate of P. C. Hollingsworth, against the Southern Railway Company. Prom an order overruling a plea in abatement, defendant appeals. Reversed.

T. P. Cothran, for appellant.

Sheppards & Grier, for respondent

POPE, J. This was an action in the court of common pleas for Greenwood county, in the state of South Carolina, to recover damages, under what is known as the "Lord Campbell Act, " of the defendant (appellant) for the alleged killing by the cars of the Southern Railway Company of one P. C. Hollingsworth; such damages being laid at $1,995. The killing occurred on the 8th day of February, 1897, and the action was brought on the 7th day of February, 1899. The answer of the defendant, the Southern Railway Company, was a plea in abatement, and was in these words: "(1) That at the commencement of this action there was, and now is, another action pending in the circuit court of the United States for the district of South Carolina between the same parties, and for the same cause as that set forth in the complaint herein. (2) That on September 24, 1897, the plaintiff instituted an action in the court of common pleas for Greenwood county, in the state of South Carolina, against the defendant, upon the cause of action alleged in the complaint therein; that on October 13, 1897, the defendant filed its petition and bond, as required by law, with the clerk of the court of common pleas for said county of Greenwood, for removal of said cause to the circuit court of the United States for the district of South Carolina, and thereafter, in due time, filed a certified copy of the record of said state court with the clerk of the United States circuit court; that thereafter, to wit, on the——day of April, 1898, the said plaintiff made a motion in the said circuit court of the United States to remand said cause to the state court, which motion was refused, by order dated April 15, 1898. (3) That thereafter, to wit, on the——day of August, 1898, the plaintiff made a motion to discontinue said cause then pending in the United States circuit court; that upon hearing said motion thecourt announced Its decision that the plaintiff was entitled to an order discontinuing said cause, upon condition that she pay all costs which had accrued, whereupon the plaintiff, objecting to the terms imposed, asked for and obtained the leave of the court to withdraw said motion to discontinue. (4) That said cause has ever since been, and is now, pending in said United States circuit court. Wherefore the defendant demands judgment that the said complaint be dismissed, with costs." The plaintiff demurred to defendant's answer, as not stating facts sufficient to constitute a defense, on four grounds: "(1) Because the plea fails to show that the court in which the former action was pending was a court of competent jurisdiction. (2) Because the United States circuit court for the district of South Carolina is a foreign tribunal, and an action pending in a foreign tribunal is no ground of abatement of a suit in a domestic forum. (3) The plea should show upon its face that the second action is vexatious, and should show upon its face facts which operate to abate the second action. (4) Because the pendency of a suit in the United States court is no cause for abatement of a subsequent suit for the same cause, and between the same parties, in the state court." On the 11th day of August, 1899, Judge Ernest Gary passed an order sustaining the demurrer to the plea in abatement, without giving any reason for such order. He also allowed the defendant 20 days to answer the complaint. Prom this order of Judge Gary the defendant appeals, as follows: "(1) It appears by defendant's answer, admitted by plaintiff's attorneys upon the motion, that a cause was at that time pending in the United States circuit court for the district of South Carolina between the same parties for the same relief, and upon the same cause of action; and the presiding judge erred in not holding that the former action could be successfully pleaded in abatement of the present suit. (2) That the presiding judge erred in holding that the circuit court of the United States for the district of South Carolina was a court of foreign jurisdiction, and that for that...