Jennings v. Southern Ry. Co.

• Decision Date: 04 November 1929
• Docket Number: 12754.
• Parties: JENNINGS v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

150 S.E. 309

152 S.C. 322

JENNINGS v. SOUTHERN RY. CO. et al.

No. 12754.

Supreme Court of South Carolina

November 4, 1929

Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.

Action by L. D. Jennings against the Southern Railway Company and others. From an order refusing the motion of defendant named for removal of the cause to the federal court, defendants appeal. On motion of defendant named for suspension of the case and withdrawal thereof from rule 29 of Supreme Court relative to filing of written arguments. Motions denied, and case ordered submitted.

Frank G. Tompkins, of Columbia, and Lee & Moise, of Sumter, for appellants.

D. W Robinson, of Columbia, Frank A. Miller, of Hartsville, and A S. Merrimon, of Sumter, for respondent.

COTHRAN J.

The pending appeal in this case is from an order of his honor Judge Wilson, dated June 1, 1929, refusing the motion by the defendant Southern Railway Company for an order accepting the petition and bond for removal filed by it, and removing the cause for trial to the federal court. The appeal has been docketed, and is ready for submission without oral argument under rule 29 of this court.

The railway company now moves this court:

"1. That the case be suspended until the further order of this Court.

"2. Failing to obtain such an order, that this cause be declared to be one which is not covered by Rule 29 of this Court, so far as the filing of written arguments is concerned.

"3. Failing in both of the above requests, that Rule 29 so far as this case is concerned, be abrogated, and the filing of briefs be allowed in the same manner as in cases not governed by Rule 29."

Upon the authority and reasoning of the court in Towill v. R Co., 121 S.C. 447, 114 S.E. 416, and the authorities cited in the dissenting opinion of the writer in Crenshaw v. Power Company, 124 S.C. 143, 117 S.E. 364, there appears to be no doubt of the proposition that it is the right and duty of the state court, in the first instance, to determine whether upon the face of the record, including the petition for removal, the suit appears to be a removable one; if it does not, the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made. The petitioner bases its right to remove the case upon the ground that the complaint states a separable cause of action against it. The circuit judge held otherwise, and the petitioner has appealed. ...