Frazier v. Piedmont & Northern Railway Co.

161 S.E. 689, 202 N.C. 11, 1931 N.C. LEXIS 159

• Court: Supreme Court of North Carolina
• Decided: December 23, 1931
• Status: Published

Opinion

Stacy, 0. J.

The petition for removal, besides showing the presence of the requisite jurisdictional amount, asserts a right of removal on the grounds of diverse citizenship, and alleges that the resident defendant has been fraudulently joined to prevent such removal.

The trial court held that the case was controlled by the line of decisions of which Cox v. Lamber Co., 193 N. C., 28, 136 S. E., 254, Johnson v. Lumber Co., 189 N. C., 81, 126 S. E., 165, and Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116, may be cited as fairly illustrative; while the appellant contends that the principles announced in Givens v. Mfg. Co., 196 N. C., 377, 145 S. E., 681, and Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238, are more nearly applicable.

Without “threshing over old straw,” suffice it to say, appellant has not overcome the presumption against error. Bailey v. McKay, 198 N. C., 638, 152 S. E., 893. To prevail on appeal, be wbo alleges error must successfully bandle tbe laboring oar. Poindexter v. R. R., 201 N. C., 833, 160 S. E., 767; Jackson v. Bell, 201 N. C., 336, 159 S. E., 926.

But for another reason tbe appeal must be dismissed. There is no summons in tbe record or anything to indicate that tbe resident defendant has been served, and the transcript fails to show organization of court (S. v. May, 118 N. C., 1204, 24 S. E., 118), or that “court was held by a judge authorized to bold it, and at tbe place and time prescribed by law” (S. v. Butts, 91 N. C., 524). Pruitt v. Wood, 199 N. C., 788, 156 S. E., 126.

Appeal dismissed.