Mason v. Southern Ry. Co.

• Decision Date: 15 June 1938
• Docket Number: 739.
• Citation: 197 S.E. 566,214 N.C. 21
• Parties: MASON v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

197 S.E. 566

214 N.C. 21

MASON v. SOUTHERN RY. CO. et al.

No. 739.

Supreme Court of North Carolina

June 15, 1938

Appeal from Superior Court, Durham County; Luther Hamilton, Special Judge.

Action by Clarence Mason against the Southern Railway Company and another for an alleged negligent injury, wherein named defendant moved for removal to federal court. From an order staying hearing on motion to remove while plaintiff amended and clarified his complaint, the named defendant appeals.

Appeal dismissed.

Where the cause is a proper one for removal from state to federal court and adequate petition and bond are duly filed, entry of any order substantially affecting parties' rights, save removal, by the clerk or judge of the state court, is error.

Civil action to recover damages for an alleged negligent injury instituted by plaintiff, a citizen and resident of Durham County, N. C., against the corporate defendant, "duly organized and chartered under the laws of another state", and the individual defendant, a citizen and resident of North Carolina.

The record states that, in apt time, the corporate defendant "filed a motion to remove the cause to the United States Court upon the grounds of fraudulent joinder and separable controversy". The individual defendant duly filed demurrer to the complaint. The motion of the corporate defendant to remove was denied by the clerk, and on appeal to the judge, the plaintiff was allowed to amend his complaint for the purpose of setting forth new matter, correcting typographical errors, and clarifying the original complaint. In the meantime, hearings upon the motion to remove, and the demurrer of the individual defendant, were stayed.

From this order, the corporate defendant appeals, assigning errors.

Hedrick & Hall, of Durham, and W. T. Joyner, of Raleigh, for appellant.

Oscar G. Barker and Emma Lee Smith, both of Durham, for appellee.

STACY Chief Justice.

When the cause is a proper one for removal, and adequate petition and bond are duly filed, it is error for the clerk or the judge of the State court to enter any order therein substantially affecting the rights of the parties, save the order of removal. Huntley v. Express Co., 191 N.C 696, 132 S.E. 786; Powell v. Watkins, 172 N.C. 244 90 S.E. 207; Winslow v. Collins, 110 N.C. 119, 14 S.E. 512.

Whether the petition in the instant case is sufficient to oust the jurisdiction of the Superior Court, and thus render the order appealed from nugatory, cannot be determined on the record because the petition has been omitted from the...