Calvert v. Southern Ry. Co.

• Decision Date: 10 August 1900
• Citation: 36 S.E. 750,64 S.C. 139
• Parties: CALVERT v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

36 S.E. 750

64 S.C. 139

CALVERT v. SOUTHERN RY. CO.

Supreme Court of South Carolina

August 10, 1900

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

Action by W. H. Calvert, administrator of D. C. Calvert, deceased against the Southern Railway Company. Defendant's petition to remove the cause to the federal court was refused, plaintiff had judgment, and defendant appeals. Reversed.

Pope J., dissenting.

T. P Cothran, for appellant.

W. N Graydon, for respondent.

JONES J.

This action was for $10,000 damages for the alleged negligent killing of plaintiff's intestate by the defendant company on its line of railway in Abbeville county, in this state. Before entering upon trial the defendant interposed an objection to the jurisdiction of the court, on the ground of defendant's right to remove said cause to the circuit court of the United States, based upon the following agreed statement of facts: "(1) That the Southern Railway Company on the 18th of June, 1894, became a corporation under the laws of the state of Virginia. (2) That said Southern Railway Company has complied with the constitution (article 9, § 8), and with the acts of assembly of said state in reference to foreign corporations doing business in this state, by filing with the secretary of state a certified copy of its charter, on the ___ day of January, 1897, and by filing the same with the register of mesne conveyance of Abbeville county on April___, 1896. (3) That on the ___ day of July, 1899, the defendant filed with the clerk of the court of common pleas of Abbeville county its petition for removal of this cause to the circuit court of the United States for the district of South Carolina, and accompanied said petition with a properly executed bond, as required by law. Said petition and bond were filed within the time required by the statutes of South Carolina for answering the complaint herein. (4) That thereafter, on the ___ day of July, 1899, the defendant served upon plaintiff's attorneys its answer in this case. (5) That within the time required by law the defendant filed with the clerk of the United States circuit court for the district of South Carolina a certified copy of the record in said cause, and procured the said cause to be docketed in said last-named court. The plaintiff does not waive the objection that such filing and docketing cannot be made until the state court signs an order...