McNeal Pipe & Foundry Co. v. Howland
| Decision Date | 19 March 1888 |
| Citation | 5 S.E. 745,99 N.C. 202 |
| Parties | McNEAL PIPE & FOUNDRY CO. v. HOWLAND et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Durham county; JAMES H. MERRIMON, Judge.
Application of A. H. Howland, a defendant in an action against himself and the Durham Water Company, by the Foundry Company of New Jersey, for removal to the United States circuit court. Application denied, and defendant Howland appeals.
J. W Hinsdale, for plaintiff.
W. W Fuller, for defendant.
The action is upon a contract entered into between the plaintiff a corporation formed under the laws of the state of New Jersey, and the defendant A. H. Howland, a citizen and resident of the state of Massachusetts, to recover damages for the breach thereof in the non-payment of goods sold and delivered, and is prosecuted against the other defendant, the Durham Water Company, a corporation created and acting under the laws of this state, to establish and enforce a lien therefor upon the property of the latter. The complaint was filed at fall term, 1887, of the superior court at Durham, to which the summons was returned, and separate answers of the defendants put in, purporting to be at that term, while the verification of each was made after its expiration in November. The defendant Howland, alleged to owe the plaintiff for goods delivered under the contract in more than $20,000 applied by petition, (when filed does not appear, but which was passed on and denied at January term afterwards,) asking for the removal of the cause to the circuit court of the United States for the Western district of North Carolina, under the several acts of congress. The plaintiff resisted the application for removal, contending that a case for removal by the said Howland was not presented in the record, for these reasons: "First, because his petition and bond were not filed in apt time; secondly, because the bond did not conform to the requirements of the act of congress, in that it was not conditioned to provide for the payment of costs in the United States court; thirdly, because the pleadings did not show a severable controversy such as was provided for in the act of congress of 1887; fourthly, because defendant Howland being a citizen and resident of the state of Massachusetts, and not being an inhabitant of the Western district of North Carolina, and the plaintiff being a citizen and resident of the state of New Jersey, and as therefore the United States circuit court would not have jurisdiction of a suit originally brought in that court, it would not have jurisdiction of this cause when removed, and on that account the motion to remove should be refused." The defendant offered to file an additional bond, or to amend the present one in any particular necessary. The court being of opinion that no order of the state court was necessary to the removal of the cause, if it were a proper case for removal; and being further of opinion that the bond was insufficient, and it had no power to allow an amendment thereto or a new bond to be filed, and that in the suit in which defendant's petition was filed there is not "a controversy which is wholly between citizens of different states," and that the circuit court of the United States would have no jurisdiction of the action,--declined to make the order allowing defendant Howland to file a new bond or to amend the bond on file, and also declined to make an order removing the action to the circuit court. Defendant Howland excepted to the court's refusal to allow a new bond to be filed or an amendment to the one on file, and to the refusal of the court to order the removal of the action to the circuit court of the United States, and appealed to the supreme court. Notice of appeal waived. The bond was in form as follows:
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