Calvert v. Southern Ry. Co.

36 S.E. 750, 64 S.C. 139, 1900 S.C. LEXIS 2

Opinions

August 10, 1900. The opinion by the Supreme Court was delivered by This action was for $10,000 damages for alleged negligent killing of plaintiff's intestate by the defendant company on its line of railway, in Abbeville County, in this State. Before entering upon trial the defendant interposed objection to the jurisdiction of the Court on the ground of defendant's right to remove said cause to the Circuit Court of the United States, based upon the following agreed statement of facts:

"1. That the Southern Railway Company, on the 18th of June, 1894, became a corporation under the laws of the State of Virginia.

"2. That said Southern Railway Company has complied with the Constitution, art. IX., sec. 8, and with the acts of Assembly of said State in reference to foreign corporations doing business in this State, by filing with the secretary of State a certified copy of its charter, on the day of January, 1897, and by filing the same with the register of mesne conveyance of Abbeville County on April 1896.

"3. That on the day of July, 1899, the defendant filed with the clerk of the Court of Common Pleas of Abbeville County its petition for removal of this cause to the Circuit Court of the United States for the District of South Carolina, and accompanied said petition with a properly executed bond as required by law. Said petition and bond were filed within the time required by the Statutes of South Carolina for answering the complaint herein.

"4. That thereafter, on the day of July, 1899, the defendant served upon plaintiff's attorneys its answer in this case.

"5. That within the time required by law the defendant filed with the clerk of the United States Circuit Court for the District of South Carolina a certified copy of the record in said cause, and procured the said cause to be docketed in said last named Court. The plaintiff does not waive its objection that such filing and docketing cannot be made until the State Court signs an order allowing removal of said cause to the United States Court.

"6. That notwithstanding said proceedings for removal, the plaintiff has procured said cause to be docketed upon calendar No. 1 of the Court of Common Pleas for Abbeville County."

The Circuit Court overruled the objection, on the authority of Mathis v. R.R. Co., 53 S.C. 257, and from the order in the premises is this appeal. The question of the right of the defendant company to remove a similar cause on substantially the same state of facts was considered in the recent case of John Wilson, as administrator, v. Southern Railway Co., filed on the day of 1900, wherein the case of Mathis v. R.R. Co., supra, was overruled, and the right of defendant to remove on the ground of diverse citizenship and non-residence was sustained. That decision controls this case. Upon the filing of the required petition and bond for removal, the State Court has no jurisdiction to proceed further. Marshall v. Holmes, 141 U.S. 595;Pelzer Mfg. Co. v. Sun Fire Office, 36 S.C. 213; Dunham v. Carson, 37 S.C. 279.

The judgment of the Circuit Court is reversed.

MR. JUSTICE POPE dissents and reserves the right to filedissenting opinion hereafter.

The remittitur was held up on petition for rehearing and for argument before Court en banc. The petition was granted and argument ordered to be had before Court enbanc on August 1901.

May 6, 1902. The opinion of the Court en banc was delivered by