Huntley v. Southeastern Express Co.
| Decision Date | 05 May 1926 |
| Docket Number | 490. |
| Citation | 132 S.E. 786,191 N.C. 696 |
| Parties | HUNTLEY v. SOUTHEASTERN EXPRESS CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Caldwell County; Stack, Judge.
Civil action by L. B. Huntley against the Southeastern Express Company. From a judgment allowing plaintiff to submit to voluntary nonsuit after defendant filed petition for removal defendant appeals. Reversed.
Civil action to recover damages for an alleged negligent injury instituted by plaintiff, a citizen and resident of Caldwell county, N. C., against the defendant, a corporation chartered under the laws of the state of Georgia.
The defendant, in apt time, filed its petition and bond for removal of the cause to the District Court of the United States for the Western District of North Carolina for trial of the ground of diverse citizenship. Upon the hearing of said petition before the clerk, the plaintiff was allowed to reduce the amount of his claim, as set out in the complaint from $10,000 to $2,999, and the petition was thereupon denied. The defendant excepted and appealed to the judge; and on the hearing before the judge the plaintiff was allowed, over objection of the defendant, to submit to a voluntary nonsuit. From this judgment, the defendant appeals, assigning error.
Squires & Whisnant, of Lenoir, for appellant.
The petition for removal, besides showing the presence of the requisite jurisdictional amount, and, which it is conceded, was filed in apt time, asserts a right of removal on the ground of diverse citizenship, or that the case is one between citizens of different states. Judicial Code U.S. § 28 (Comp. St. § 1010).
The cause being a proper one for removal, and the petition and bond having been filed in apt time, it was error for the clerk or the judge of the state court to enter any order therein affecting the rights of the parties save the order of removal. Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354.
When a sufficient cause for removal is made out in the state court, the rightful jurisdiction of that court comes to an end, and no further proceedings can properly be had therein unless and until its jurisdiction has been restored. Baltimore, etc., R. Co. v. Koontz, 104 U.S. 5, 26 L.Ed. 643.
It has been held that after the due filing of petition and bond, an amendment to the complaint, reducing the amount in controversy to a sum less than that required to give the federal court...
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