King v. McMillan

• Decision Date: 07 April 1966
• Docket Number: Civ. A. No. GR 65-25.
• Citation: 252 F. Supp. 390
• Parties: Norman R. KING, a minor, by his Guardian ad Litem, Nancy King, and A. D. Cannon, Jr., Plaintiffs, v. C. T. McMILLAN, d/b/a Barker-McMillan Hatchery Company, Defendant.
• Court: U.S. District Court — District of South Carolina

252 F. Supp. 390

Norman R. KING, a minor, by his Guardian ad Litem, Nancy King, and A. D. Cannon, Jr., Plaintiffs, v. C. T. McMILLAN, d/b/a Barker-McMillan Hatchery Company, Defendant.

Civ. A. No. GR 65-25.

United States District Court D. South Carolina, Greenville Division.

April 7, 1966.

Paul J. Foster, of Mann, Foster, Johnston & Ashmore, Greenville, S. C., for plaintiffs.

James H. Price, and William B. Price, Greenville, S. C., for defendant.

HEMPHILL, District Judge.

Plaintiff's motion to remand places the issue of jurisdiction before this Court.¹ The original complaint, pursued in the Court of Common Pleas for Greenville County, South Carolina, was dated November 19, 1965, and, as the court was informed this day, was served through the authority of the South Carolina State Highway Department² in such matters, on November 29, 1965. The parties admit that Norman R. King, as well as his Guardian ad Litem, and mother, are citizens and residents of South Carolina, and A. D. Cannon, Jr. is a resident of Georgia. For diversity consideration, all agree that defendant is a resident of the State of Georgia.

Cannon's admitted interest is by virtue of an alleged assignment filed with this court in the form of an approval Order of the Honorable Frank Eppes, Judge, Thirteenth Judicial Circuit of South Carolina, dated November 1, 1965, pursuant to verified petition of Nancy King, dated October 20, 1965. The petition to Judge Eppes asks the South Carolina court to authorize the assignment for the following reasons:

IV

Your petitioner is informed and believes that in order to assure the retained jurisdiction in Greenville County, South Carolina, it will be necessary to assign an interest in the aforesaid cause of action to a resident of the State of Georgia, and that one A. D. Cannon, Jr. is a resident of the State of Georgia and is willing to accept an assignment of a one one-hundredth (1/100th) interest in the cause of action of the minor, Norman R. King.

V

The said A. D. Cannon, Jr. has agreed as part of the consideration for this assignment to pay certain outstanding medical bills which are now due and owing by your petitioner and your petitioner is financially unable to satisfy the medical expenses incurred to date.

Defendant complains that the Order approving assignment, although dated November 1, 1965, was not filed in the Office of the Greenville County Clerk of Court until December 20, 1965. The legislature of South Carolina has not yet seen fit to direct a strict chronology or practice of filing papers involved in civil suits in the state courts. For the purposes of this decision this court must consider, but not here test or experiment, in the climate of state procedural practice.³ The legislature has emphasized that any lack of strict interpretation of pleadings is in the interest of justice.⁴ The statutes as to filings are general.⁵

This court cannot, will not, on the facts and pleadings now before it, invade the sanctity of the approval Order, or pierce the veil of authority erected by the signature thereon. If any fraud or collusion exists in connection with the assignment, the state court is the proper forum for pursuit of same.⁶ In Heape v. Sullivan⁷ the assignment, by a South Carolina resident of a 1/100th interest in his cause of action (against a Florida resident) to a Florida resident was held sufficient to defeat diversity⁸ jurisdiction. South Carolina has previously held⁹ that causes of action for tort which survive, are assignable, while those that do not are not assignable.

Defendant seeks to invoke the limited jurisdiction of this court by removal.¹⁰ The burden is on defendant-petitioner to establish grounds for removal.¹¹ Jurisdiction of this court is not divested here under section 1359's¹² proscription of collusive joinder, for the alleged, yet unestablished, collusion here charged was to defeat this jurisdiction.

Jurisdiction fails because the defendant has not sustained the burden of establishing the grounds for removal.

Petition for removal denied.

Cause remanded to the Court of Common Pleas for Greenville County, South Carolina.

And it is so ordered.

1 28 U.S.C. §§ 1332, 1333.

2 S.C.Code for 1962, Sections 10-431, 10-431.1, 46-104.

3 Szantay v. Beech Aircraft Corp., 349 F. 2d 60, 65 (4th Cir. 1965) citing Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L. Ed. 1212 (1951).

4 S.C.Code Ann. § 10-602 (1962): Pleadings to be liberally construed. In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.

5 S.C.Code Ann. § 15-1761 (1962): Record of court proceedings; filing papers. The clerk shall make a full, fair and correct entry and record of the proceedings of the courts and other matters pertaining to his office in the various books required to be kept, conforming to the mode prescribed by law, order of the court or usage of the office. He shall file in their proper order original papers in causes instituted or other authorized proceedings and preserve with care all papers, books and furniture pertaining to or connected with his office.

S.C.Code Ann. § 15-1764 (1962): Filing and endorsement of papers. The original papers of record in each cause wherein judgment may be signed or confessed or decree...