Pruett v. Charlotte Power Co.

• Decision Date: 23 December 1914
• Docket Number: 442.
• Citation: 83 S.E. 830,167 N.C. 598
• Parties: PRUETT v. CHARLOTTE POWER CO.
• Court: North Carolina Supreme Court

83 S.E. 830

167 N.C. 598

PRUETT
v.
CHARLOTTE POWER CO.

No. 442.

Supreme Court of North Carolina

December 23, 1914

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.

From an order denying an application to remove a cause to the federal court an appeal presently lies.

Osborne, Cocke & Robinson, of Charlotte, for appellant.

J. Laurence Jones, Stewart & McRae, and Shannonhouse & Jones, all of Charlotte, for appellee.

HOKE, J.

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 that [83 S.E. 831.] the verdict and judgment thereon rendered at March term must be set aside.

Our...