Huntley v. Southeastern Express Co.

Supreme Court of North Carolina

Huntley v. Southeastern Express Co.

132 S.E. 786, 191 N.C. 696, 1926 N.C. LEXIS 156

CourtSupreme Court of North Carolina

DecidedMay 5, 1926

StatusPublished

Cited by9 cases

This text of 132 S.E. 786 (Huntley v. Southeastern Express Co.) 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.

Bluebook

Huntley v. Southeastern Express Co., 132 S.E. 786, 191 N.C. 696, 1926 N.C. LEXIS 156 (N.C. 1926).

Pincite

Opinion

Stacy, C. J.

Tbe petition for removal, besides showing tbe presence of tbe requisite jurisdictional amount, asserts a right of removal on tbe ground of diverse citizenship, or that tbe case is one between citizens of different states. U. S. Judicial Code, sec. 28.

Tbe cause being a proper one for removal, and tbe petition and bond having been filed in apt time, it was error for tbe clerk or tbe judge of tbe State Court to enter any order therein, affecting tbe rights of tbe parties, save tbe order of removal. Kern v. Huidekoper, 103 U. S., 485.

When a sufficient cause for removal is made out in tbe State Court, tbe rightful jurisdiction of that court comes to an end, and no further proceedings can properly be bad therein unless and until its jurisdiction has been restored. Baltimore, etc., R. Co. v. Koontz, 104 U. S., 5.

It has been held that after tbe due filing of petition and bond, an amendment to tbe complaint, reducing tbe amount in controversy to a sum less than that required to give tbe Federal Court jurisdiction of tbe suit, will not defeat tbe jurisdiction of tbe Federal Court which has already attached. Stephens v. St. Louis, etc., R. Co., 47 Fed., 530; Lake Erie, etc., R. Co. v. Huffman, 177 Ind., 126, Ann. Cas., 1914 C, 1272. But it has also been held that if tbe motion to amend precedes tbe filing of tbe petition to remove, tbe suit is not removable, even though tbe amendment has not actually been made. Waite v. Phoenix Ins. Co., 62 Fed., 769. In tbe case at bar tbe motion to amend followed tbe petition to remove.

Tbe jurisdiction of tbe Federal Court having attached immediately upon tbe filing of tbe petition and bond, and tbe jurisdiction of tbe State Court by tbe same act having been ousted, it follows that tbe judgment of nonsuit was erroneously entered in tbe State Court. Nat. Steamship Co. v. Tugman, 106 U. S., 118.

Reversed.

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Stacy, C. J.

Tbe petition for removal, besides showing tbe presence of tbe requisite jurisdictional amount, asserts a right of removal on tbe ground of diverse citizenship, or that tbe case is one between citizens of different states. U. S. Judicial Code, sec. 28.

Tbe cause being a proper one for removal, and tbe petition and bond having been filed in apt time, it was error for tbe clerk or tbe judge of tbe State Court to enter any order therein, affecting tbe rights of tbe parties, save tbe order of removal. Kern v. Huidekoper, 103 U. S., 485.

When a sufficient cause for removal is made out in tbe State Court, tbe rightful jurisdiction of that court comes to an end, and no further proceedings can properly be bad therein unless and until its jurisdiction has been restored. Baltimore, etc., R. Co. v. Koontz, 104 U. S., 5.

It has been held that after tbe due filing of petition and bond, an amendment to tbe complaint, reducing tbe amount in controversy to a sum less than that required to give tbe Federal Court jurisdiction of tbe suit, will not defeat tbe jurisdiction of tbe Federal Court which has already attached. Stephens v. St. Louis, etc., R. Co., 47 Fed., 530; Lake Erie, etc., R. Co. v. Huffman, 177 Ind., 126, Ann. Cas., 1914 C, 1272. But it has also been held that if tbe motion to amend precedes tbe filing of tbe petition to remove, tbe suit is not removable, even though tbe amendment has not actually been made. Waite v. Phoenix Ins. Co., 62 Fed., 769. In tbe case at bar tbe motion to amend followed tbe petition to remove.

Tbe jurisdiction of tbe Federal Court having attached immediately upon tbe filing of tbe petition and bond, and tbe jurisdiction of tbe State Court by tbe same act having been ousted, it follows that tbe judgment of nonsuit was erroneously entered in tbe State Court. Nat. Steamship Co. v. Tugman, 106 U. S., 118.

Reversed.

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Bluebook (online)

132 S.E. 786, 191 N.C. 696, 1926 N.C. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huntley-v-southeastern-express-co-nc-1926.

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