Crenshaw v. Southern Power Co.

117 S.E. 364, 124 S.C. 143, 1923 S.C. LEXIS 117

• Court: Supreme Court of South Carolina
• Decided: April 30, 1923
• Docket: 11202
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Fraser.

The statement in the case shows:

“This action was commenced in the Court of Common-Pleas for York County by the service of a summons and complaint on the defendants on or about the 17th day of October, 1921. The action was brought to recover from the defendants the sum of $50,000 damages for the alleged wrongful death of the plaintiffs intestate on account of the alleged acts of negligence, willfulness, and wantonness set forth in the complaint, as will appear by reference thereto. The defendant Southern Power Company is a corporation chartered and organized under the laws of the State of New Jersey, and the defendant Arcade Cotton Mills is a corpora-, tion chartered and organized under the laws of the State of South Carolina.”

“Before the time for answering had expired, and on due notice, the defendant Southern Power Company duly filed with the Clerk of the Court of Common Pleas for York County its petition and bond for the- removal of the cause pending in said Court to the United States District Court for the Western District of South Carolina, and also gave notice that it would, at the next term of said Court of Common pleas, move said Court for an order accepting said petition and bond and that said Court proceed no further in said cause, except to order it to be transferred to said United States District Court. The grounds upon which transfer was prayed was that it appeared from the complaint in the action that there was a separable controversy existing between the defendants, and that the Southern Power Com: pany was not a citizen or resident of the Státe of South Carolina.” •

“The motion was resisted by the attorneys for the plaintiff ; and, after hearing argument thereon, his Honor, Judge Rice, refused said motion upon the grounds stated in his order, as hereinafter appears. In due time the defendant Southern Power Company gave notice' of its intention to appeal to the Supreme Court from said order.”

The Federal Court is not bound by any order made by the State Courts in removal cases. The proper practice is to suspend this appeal and allow the respondents to make a motion before the Federal Court to remand the case, and it is so ordered.

Mr. Chiee- Justice Gary and Messrs. Justices Watts and Marion concur.