Thrower v. Kistler

• Decision Date: 07 January 1935
• Docket Number: No. 16966.,16966.
• Parties: THROWER et al. v. KISTLER et al.
• Court: South Carolina Supreme Court

178 S.E. 126

THROWER et al.

v.KISTLER et al.

No. 16966.

Supreme Court of South Carolina.

Jan. 7, 1935.

Appeal from Common Pleas Circuit Court of Marlboro County; E. C. Dennis, Judge.

Action by Viola Thrower, herein acting and suing in her own right, as heir at law and widow of Ace Thrower, deceased, and in behalf of all others, heirs at law of Ace Thrower, deceased, who will come in and bear their part of the expenses of the action, against J. Harry Kistler, as administrator of the estate of Ace Thrower, deceased, and another. Prom an order directing removal of the case to the Federal District Court, plaintiffs appeal.

Affirmed.

J. E. Dudley, Jr., and J. W. Le Grand, both of Bennettsville, for appellants.

C. W. Muldrow, of Florence, for respondents.

J. HENRY JOHNSON, Acting Associate Justice.

This cause was instituted by the named plaintiff, on behalf of herself and all other heirs at law of one Ace Thrower, deceased, against Kistler and the Surety Corporation for the purpose of obtaining judgment against the latter in a sum exceeding $5,000.

The plaintiffs are citizens and residents of the states of North and South Carolina, Kistler is a citizen and resident of this state, and the Surety Corporation is a citizen and resident of the state of New York. Service of process upon the nonresident defendant was made by delivering copies of the sum mons and complaint to the insurance commissioner of this state.

The complaint alleges that Kistler was duly appointed and qualified as administrator of the estate of Thrower, with National Surety Company as his surety in the sum of $11,385; that the administrator defaulted in his administration of the estate; that judgment was thereafter obtained against him in the court of common pleas for Marlboro county in the sum of $5,053.88; that such judgment was duly entered in the clerk's office in that county, and remains unpaid; that the administrator's surety, National Surety Company, admitting its insolvency, and that it had ceased to do business within this state, was, in an action in the court of common pleas for Richland county, adjudged to be insolvent, and its assets within this state placed in the hands of receivers about May 1, 1933; that the nonresident defendant, National Surety Corporation, was chartered under the laws of the state of New York a few days prior thereto; that it and its predecessor, National Surety Company, fraudulently connived to permit the Surety Corporation to take charge of, and to convert to its own use, all the assets, etc., of the administrator's surety; that the Surety Corporation should be required to account for the Surety Company's assets; and judgment is asked against it for the identical amount of the judgment previously obtained and entered against the administrator.

No cause of action is alleged against the resident defendant Kistler, and no relief is demanded against him--in fact, as stated, the complaint specifically alleges that judgment has heretofore been obtained and entered against him.

Within due time the nonresident defendant presented to the state court its petition and bond for the removal of the cause to the District Court of the United States for the Eastern District of South Carolina, such petition alleging, inter alia, the diversity of citizenship of the parties litigant, that the amount In controversy, exclusive of interest and costs, exceeded the sum of $3,000, that the controversy between plaintiffs and the nonresident defendant was separable from the controversy, if any, between plaintiffs and the resident defendant, and fully determinable without the presence of the resident defendant.

The plaintiffs' answer and return to such petition denied none of the material allegations thereof, except the averment that the cause presented separable controversies, which is a question of law, hence the facts stated in the petition must be taken as true. Towill v. Sou. Ry. Co., 121 S. C. 447, 114 S. E. 416; Wilson v. Republic Iron & Steel Co., 257 U. S. 92, 42 S. Ct. 35, 66 L. Ed. 144.

The state court, Judge Dennis presiding, held that the resident defendant, Kistler, as administrator, was bound by the judgment previously procured against him, and that the issue as to his liability could not again be raised by plaintiffs in the instant cause; that the National Surety Company, being a privy thereto, is likewise bound; and that the only controversy presented by this action was solely between plaintiffs and the nonresident defendant, the Surety Corporation, as to the liability of the latter for the debt of the insolvent Surety Company.

Removal to the Federal District Court was thereupon ordered, and subsequently completed, after which, and prior to the argument in this court of plaintiffs' appeal from Judge Dennis' order of removal, plaintiffs moved in the District Court, as their counsel admitted at the bar during oral argument, to have the cause remanded to the court of common pleas for Marlboro county for trial.

The District Court refused to remand, and since the cause was, upon the face of the record, a removable cause, it is well settled that the state courts are now without jurisdiction to proceed further, unless and until the judgment of the District Court,...