Mangum v. Southern Ry. Co.

• Decision Date: 20 May 1936
• Docket Number: 607.
• Citation: 185 S.E. 644,210 N.C. 134
• Parties: MANGUM v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

185 S.E. 644

210 N.C. 134

MANGUM v. SOUTHERN RY. CO. et al.

No. 607.

Supreme Court of North Carolina

May 20, 1936

Appeal from Superior Court, Richmond County; Phillips, Judge.

Action by Mrs. Rosa Mangum against the Southern Railway Company and another, wherein defendants filed a cross-action bringing in as parties defendant L. R. Powell, Jr., and another receivers of the Seaboard Air Line Railroad Company. From a judgment, receivers appeal.

Affirmed.

This is an action for actionable negligence brought by plaintiff against the Southern Railway Company and the North Carolina Railroad Company as joint tort-feasors, alleging damage. The defendants denied negligence, and as a further answer and cross-action alleged in detail that L. R. Powell, Jr., and Henry W. Anderson, receivers of the Seaboard Air Line Railway Company, were negligent in the operation of its train, and further allege: "That even if these defendants were guilty of negligence in any of the particulars alleged in the complaint, which is hereby expressly denied, and even if such alleged negligence was a proximate cause of the plaintiff's injury, which is also denied, the above described negligence of the receivers of the Seaboard Air Line Railway Company was also a proximate cause of the plaintiff's injury, operating jointly and concurrently to produce said injury, and if these defendants are at all responsible to the plaintiff for her injury, which is hereby expressly denied, the said Receivers of the Seaboard Air Line Railway Company are jointly and concurrently liable with these defendants, both to the plaintiff and to these defendants, and these defendants have a right to have said liability of said receivers determined and enforced in this action, under and by virtue of the terms and provisions of Section 618 of the Consolidated Statutes of North Carolina."

Defendants' prayer is as follows: "Wherefore, these defendants pray (1) That the said L. R. Powell, Jr., and Henry W. Anderson Receivers of the Seaboard Air Line Railway Company, be made parties to this action; and that summons be issued and served upon them directing them to answer the cross-action of these defendants above set forth. (2) That the rights and liabilities of these defendants and the said Receivers of the Seaboard Air Line Railway Company as between themselves, be determined and enforced. (3) That the plaintiff recover nothing of these defendants in this action; and that judgment herein be entered in favor of these defendants. (4) For such other and further relief to which these defendants may be entitled in the premises."

Judge McElroy, at the September term, 1935, made the following order:

Upon reading and considering said answer and cross-action, it is s hereby Considered, Ordered and Decreed as follows:

1. That the said L. R. Powell, Jr., and Henry W. Anderson, Receivers of the Seaboard Air Line Railway Company, be and they are hereby made parties defendant to this action.

2. That the Clerk of this Court be, and he is hereby authorized and directed to issue a summons herein against said parties defendant mentioned in the preceding paragraph herein.

3. That the Sheriff of Richmond County be, and he hereby is authorized and directed to serve upon said parties defendant the summons mentioned in the preceding paragraph hereof, by delivering a copy thereof, together with a copy of the verified answer and cross-action herein filed by the original defendants herein.

4. That the said L. R. Powell, Jr., and Henry W. Anderson, Receivers of the Seaboard Air Line Railway Company be commanded, by the terms of the summons hereinbefore referred to, to appear and answer, within 30 days from the service of said summons, the answer and cross-action heretofore filed herein by the Southern Railway Company and the North Carolina Railroad Company."

Summons dated September 7, 1935, upon L. R. Powell, Jr., and Henry W Anderson, showing service September 10, 1935, appears in the record.

The receivers petitioned for removal to the United States District Court, and set forth their reasons, in part, as follows: "Your petitioners further allege that they are entitled to remove this cause to the United States District Court for the Middle District of North Carolina, Rockingham Division, said division including the County of Richmond, in which said...