First Security Trust Co. v. Henderson

Supreme Court of North Carolina

First Security Trust Co. v. Henderson

39 S.E.2d 804, 226 N.C. 649, 1946 N.C. LEXIS 291

CourtSupreme Court of North Carolina

DecidedOctober 30, 1946

StatusPublished

Cited by4 cases

This text of 39 S.E.2d 804 (First Security Trust Co. v. Henderson) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First Security Trust Co. v. Henderson, 39 S.E.2d 804, 226 N.C. 649, 1946 N.C. LEXIS 291 (N.C. 1946).

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Opinion

Stacy, C. J.

The petition for removal to the District Court of the United States for trial was properly denied. The petitioner first asserted in his answer that the validity of the Higgenbotham assignment would be “contested herein, if permitted by the court.” Such permission was granted, without prejudice to either of the contestantsUo file additional pleadings and to make appropriate motions in the cause. The authority to determine the validity of a written instrument, as well as its meaning, is contained in the Declaratory Judgment Act. G. S., 1-254. Thus, having invoked the jurisdiction of the court and sought its indulgence . in the matter of filing additional pleadings or motions, -the petitioner is in no position to insist upon a removal of the cause to the Federal District Court. Butler v. Armour, 192 N. C., 510, 135 S. E., 350. Other reasons are suggested on brief in support of the judgment denying the petition, but the foregoing will suffice for present purposes. McIntosh on Procedure, 285.

At the bar here, L. K. Higgenbotham moved to dismiss (motion styled demurrer) for want of jurisdiction, and in this he is joined by *651 Miles O. Sherrill. The controversy over the validity of the assignment between Sherrill and Lliggenbotham was originally brought into court by the executor. It is entitled to have the matter determined in the present proceeding. G. S., 1-254.

Judgment affirmed.

Motion to dismiss, denied.

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Stacy, C. J.

The petition for removal to the District Court of the United States for trial was properly denied. The petitioner first asserted in his answer that the validity of the Higgenbotham assignment would be “contested herein, if permitted by the court.” Such permission was granted, without prejudice to either of the contestantsUo file additional pleadings and to make appropriate motions in the cause. The authority to determine the validity of a written instrument, as well as its meaning, is contained in the Declaratory Judgment Act. G. S., 1-254. Thus, having invoked the jurisdiction of the court and sought its indulgence . in the matter of filing additional pleadings or motions, -the petitioner is in no position to insist upon a removal of the cause to the Federal District Court. Butler v. Armour, 192 N. C., 510, 135 S. E., 350. Other reasons are suggested on brief in support of the judgment denying the petition, but the foregoing will suffice for present purposes. McIntosh on Procedure, 285.

At the bar here, L. K. Higgenbotham moved to dismiss (motion styled demurrer) for want of jurisdiction, and in this he is joined by *651 Miles O. Sherrill. The controversy over the validity of the assignment between Sherrill and Lliggenbotham was originally brought into court by the executor. It is entitled to have the matter determined in the present proceeding. G. S., 1-254.

Judgment affirmed.

Motion to dismiss, denied.

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39 S.E.2d 804, 226 N.C. 649, 1946 N.C. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-security-trust-co-v-henderson-nc-1946.

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