Herrick v. Norfolk-Southern R. Co.

• Decision Date: 06 March 1912
• Citation: 73 S.E. 1008,158 N.C. 307
• Parties: HERRICK v. NORFOLK-SOUTHERN R. CO.
• Court: North Carolina Supreme Court

73 S.E. 1008

158 N.C. 307

HERRICK v. NORFOLK-SOUTHERN R. CO.

Supreme Court of North Carolina

March 6, 1912

Appeal from Superior Court, Martin County; Ferguson, Judge.

Action by Howard Herrick, Jr., by his next friend, John C. Lamb against the Norfolk-Southern Railroad Company. From an order of removal to the Circuit Court of the United States plaintiff appeals. Affirmed.

A state court held to have no right to determine issues of fact raised on a petition for removal to the United States court.

H. W Stubbs, for appellant.

W. B Rodman, for appellee.

WALKER J.

This action was brought by the plaintiff, Howard Herrick, who sues by his next friend, John C. Lamb, to recover damages for injuries to the infant plaintiff, alleged to have been caused by the negligence of the defendant on its electric railway in Virginia Beach, state of Virginia. The damages are laid at $25,000. Before the plea or answer was due, or the time allowed by law for filing the same had expired, the defendant presented its verified petition to the court, alleging that it is a corporation chartered under the laws of the state of Virginia, ands citizen and resident of that state, the plaintiff and his next friend being citizens of this state, and in other respects containing all the essential averments required by the removal act of Congress. It tendered a bond with sufficient surety for entering the case in the Circuit Court of the United States for the Eastern District of this state, and upon the papers thus filed in the state court it prayed that the cause be removed to the said Circuit Court for trial. Judge Ferguson, then presiding in the state court, ordered the case to be removed according to the prayer of the petition, and the plaintiff excepted and appealed.

The contention of the plaintiff is that the defendant is not a corporation and resident of the state of Virginia, but a corporation of North Carolina and Virginia, and he so alleges in his complaint. He also files certain papers, duly certified by the Secretary of State, for the purpose of sustaining his allegation. Even if the certificates do tend to establish the fact, which we gravely doubt, this issue cannot be tried in the state court. The law upon this question is well settled. It is true that a state court is not bound to surrender its jurisdiction of a suit on a petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer. The mere filing of a petition for the removal of a suit which is not removable does not work a transfer, and in order to accomplish this the suit must be one that may be removed, and the petition must show a right in the petitioner to demand the removal, which being made to appear in the record, and the necessary security having been given, the power of the state court in the case ends, and that of the federal court begins. The state court, of course, may decide, on the face of the record, whether the case is a removable one. The law upon this subject has been so fully and conclusively stated by the court having the jurisdiction under the Constitution to declare finally what it shall be that we will content ourselves by referring to one of its latest decisions dealing with the question.

In B., C. R. & N. Railway Co. v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159, it has stated the true rule explicitly, as follows: "The assignment of errors presents but a single question, and that is whether, as after the petition for removal had been filed the record showed on its face that the state court ought to proceed no further, it was competent for that court to allow an issue of fact to be made upon the statements in the petition, and to retain the suit, because on that issue the railway company had not shown by testimony that the plaintiff was actually a citizen of Minnesota. It must be confessed that previous to the cases of Stone v. South Carolina 117 U.S. 432 [6 S.Ct. 799 29 L.Ed. 962], and Carson v. Hyatt, 118 U.S. 279 [6 S.Ct. 1050, 30 L.Ed. 167], decided at the last term, the utterances of this court on that question had not always been as clear and distinct as they might have been. Thus, in Gordon v. Longest, 16 Pet. 97, 10 L.Ed. 900, in speaking of removals under section 12 of the judiciary act of 1789 [Act Sept. 24, 1789, c. 20, 1 Stat. 79], it was said [16 Pet. 104, 10 L.Ed. 902], 'It must be made to appear to the satisfaction of the state court that the defendant is an alien, or a citizen of some other state than that in which the suit was brought;' and in Railway Co. v. Ramsey, 22 Wall. 328, 22 L.Ed. 824, that, 'If, upon the hearing of the...