Dixon v. Norfolk Southern Railroad

126 S.E. 621, 189 N.C. 249, 1925 N.C. LEXIS 293

• Court: Supreme Court of North Carolina
• Decided: March 4, 1925
• Status: Published

Opinion

Pee Oueiam.

Tbe following findings of fact and order were made by tbe court below:

“This cause of action coming on to be beard before bis Honor, M. Y. Barnhill, judge presiding at tbe January Term, 1925, of Pitt County Superior Court, upon tbe appeal of plaintiff from tbe order made by J. E. Harrington, clerk Superior Court of Pitt County, overruling plaintiff’s motion to set aside and vacate tbe order of removal made by said clerk on 8 November, 1924, and being beard, tbe court finds tbe following facts: Tbe court adopts tbe findings of tbe clerk and tbe following facts in addition thereto; from evidence of E. E. Tucker, D. C.

“That attorney for defendant carried answer to tbe deputy clerk and left it witb bim to be filed in order tbat all original papers could be sent up to tbe Federal Court and save tbe necessity of making certified copies thereof, stating at tbe time and calling to tbe attention of tbe deputy clerk tbat an order of removal bad already been signed by tbe clerk.

“Upon said finding tbe court is of tbe opinion and so finds tbat tbe defendant by its action did not waive its right to removal nor make such general appearance in tbe cause as would estop it from insisting thereon.

“It is therefore ordered and adjudged by tbe court tbat tbe order of said clerk be and tbe same is affirmed and tbat this cause be and it is hereby removed to tbe District Court of tbe United States for tbe Eastern District of North Carolina, sitting at Washington, N. C., and tbe clerk of tbe Superior Court of Pitt County, North Carolina, is hereby directed to make up tbe record of this cause by transmitting all tbe original papers on file in said cause to tbe said District Court of tbe United States for tbe Eastern District of North Carolina.”

Tbe plaintiff duly excepted to tbe findings of fact and order above set forth, assigned error and appealed to tbe Supreme Court. After bearing tbe argument and examining tbe record, we can find

No error.