Frazier v. Piedmont & N. Ry. Co.
| Decision Date | 23 December 1931 |
| Docket Number | 478. |
| Citation | 161 S.E. 689,202 N.C. 11 |
| Parties | FRAZIER v. PIEDMONT & N. RY. CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Cowper, Special Judge.
Action by Loretter Frazier, administratrix, against the Piedmont & Northern Railway Company and another. From an order removing the cause to the United States District Court, the plaintiff appeals.
Appeal dismissed.
Appeal was dismissed, where record did not show service on resident defendant nor transcript show court's organization nor its holding by authorized judge at legal time and place.
Civil action to recover damages for an alleged wrongful death brought against Piedmont & Northern Railway Company, a corporation chartered under the laws of the state of South Carolina, and F. E. Williams, citizen and resident of Mecklenburg county, N. C.
Motion by nonresident corporate defendant to remove cause to the District Court of the United States for the Western District of North Carolina for trial. Motion allowed, and plaintiff appeals.
G. T Carswell and Joe. W. Ervin, both of Charlotte, for appellant.
W. S O'B. Robinson, Jr., of Charlotte, for appellee Piedmont & N. Ry. Co.
The petition for removal, besides showing the presence of the requisite jurisdictional amount, asserts a right of removal on the grounds of diverse citizenship, and alleges that the resident defendant has been fraudulently joined to prevent such removal.
The trial court held that the case was controlled by the line of decisions of which Cox v. Lumber Co., 193 N.C. 28 136 S.E. 254, Johnson v. Lumber Co., 189 N.C. 81, 126 S.E. 165, and Rea v. Mirror Co., 158 N.C. 24, 73 S.E. 116, may be cited as fairly illustrative; while the appellant contends that the principles announced in Givens v. Mfg. Co., 196 N.C. 377, 145 S.E. 681, and Crisp v. Fibre Co., 193 N.C. 77, 136 S.E. 238, are more nearly applicable.
Without "threshing over old straw," suffice it to say appellant has not overcome the presumption against error. Bailey v. McKay, 198 N.C. 638, 152 S.E. 893. To prevail on appeal, he who alleges error must successfully handle the laboring oar. Poindexter v. R. R., 201 N.C. 531, 160 S.E. 767; Jackson v. Bell, 201 N.C. 336, 159 S.E. 926.
But for another reason the appeal must be dismissed. There is no summons in the record or anything to indicate that the resident defendant has been served, and the transcript fails...
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