Pruett v. Charlotte Power Co
| Decision Date | 23 December 1914 |
| Docket Number | (No. 442.) |
| Court | North Carolina Supreme Court |
| Parties | PRUETT. v. CHARLOTTE POWER CO. |
From an order denying an application to remove a cause to the federal court an appeal presently lies.
[Ed. Note.—For other cases, see Removal of Causes, Cent. Dig. §§ 162, 165, 189, 192-195, 197, 200, 201; Dec. Dig. § 89.*]
Under Revisal 1905, § 602, providing that a perfected appeal stays all further proceedings, an appeal is not perfected until duly docketed in the Supreme Court, but an appeal from an order denying a motion for the removal of a cause to the federal court on the ground of diversity of citizenship, involving the right of the federal court to try the cause, included all issues presented in the record; and where an appeal bond was filed in apt time, and the record, constituting the case on appeal to the Supreme Court, docketed within the prescribed time and regularly prosecuted, this related back to the time of the trial and operated as a stay of proceedings, and the court below was without power to hear and determine the questions involved, so that its trial and judgment, pending appeal, would be set aside and a new trial had.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2228, 2264-2274; Dec. Dig. § 485.*]
Appeal from Superior Court, Mecklenburg County; W. J. Adams, Judge.
Action by M. L. Pruett, administratrix, against the Charlotte Power Company. Judgment for plaintiff, and defendant appeals. New trial.
Osborne, Cocke & Robinson, of Charlotte, for appellant.
J. Laurence Jones, Stewart & McRae, and Shannonhouse & Jones, all of Charlotte, for appellee.
From a perusal of the facts in evidence, it appears that this cause was instituted by issuance of the summons on August 5, 1912. At November term, 1913, on petition duly verified and accompanied by proper bond, defendants applied for removal of cause to the federal court on the ground of diversity of citizenship, and, the application having been denied at said term, defendants appealed to Supreme Court, filing proper bond; the record constituting the case on appeal. The appeal was duly docketed in the court on April 2, 1914. The same was heard in the week assigned to causes of Fourteenth district, beginning April 21st, and was decided some time thereafter; the court, in an opinion by Clark, C. J., sustaining the judgment of the lower court. See cause reported in 165 N. C. 416, 81 S. E. 624.
The present trial and judgment was had at March term, 1914, of the superior court of Mecklenburg county, and the case on appeal states that, when the cause was called for trial at said term and before the jury were impaneled, counsel for defendants informed the court of the "pending appeal" and insisted on their petition to remove, and stated that they did not waive their rights under said petition. In their case on appeal, it is formally assigned for error "that his honor proceeded with the trial pending the appeal, " etc. It is well recognized in this jurisdiction that from an order denying an application to remove a cause to the federal court an appeal presently lies. Howard v. Railroad, 122 N. C. 944, 29 S. E. 778; Pipe Co. v. Howland, 99 N. C. 202, 5 S. E. 745, 6 Am. St. Rep. 513; Fitzgerald v. Allman, 82 N. C. 492. And on these, the facts chiefly relevant, we are of opinion that the court was without power to hear and determine the issues arising on the pleadings, and thatthe verdict and judgment thereon rendered at March term must be set aside.
Our statute on this subject (Revisal, § 602) in part provides that:
"Whenever an appeal is perfected as provided by this chapter, it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other...
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