Parks v. Southern Ry. Co.

90 F. 3, 1898 U.S. App. LEXIS 2467

• Court: U.S. Circuit Court for the District of Western North Carolina
• Decided: October 19, 1898
• Status: Published

Opinion

SIMONTON, Circuit Judge.

Alice Parks, administratrix of Prank Parks, instituted a suit against the Southern Railway Company in the superior court of Wilkes county, N. C. Thereupon the defendant filed in this court its petition to remove the cause because of prejudice and local influence. The affidavit not only swears to the fact of prejudice and local influence, but it also gives facts as the reasons for the affidavit. This circuit court of the United States, hearing the petition and affidavit, made the following order:

“It appearing to the court from the petition filed in this cause, which petition has been duly sworn to as an affidavit, and also from an affidavit in the cause, that from prejudice or local influence the Southern Railway Company will not be able to obtain justice in the superior court of Wilkes county, in the state of North Carolina, or any other state court to which the said petitioners would or could, under the laws of the state of North Carolina, have the right, on account of such prejudice or local influence, to remove this cause, and that as this local prejudice does exist, they are therefore entitled to have the removal which they seek, it is accordingly ordered that this cause he, and the same is hereby, removed from the superior court of Wilkes county to this court, at Greensboro.- That, the bond offered by the petitioner being examined and approved, the clerk of the superior court of Wilkes county is hereby ordered to send a transcript of the record in this cause to the said circuit court, to the October term, 1898, at Greensboro.”

A motion is made at tbis term to remand tbe cause because of tbe insufficiency of tbe affidavit. Tbis case varies from that of Crotts v. Railway Co. (just decided) 90 Fed. 1, in that tbe facts are stated upon which the affidavit is based. Tbe sufficiency of these facts to sustain tbe affidavit was within tbe discretion of tbe court granting tbe order. It cannot be reviewed here. Tbe learned counsel for plaintiff with eloquence appealed to tbe court not to cast a slur on tbe people or tbe courts of North Carolina by refusing to remand tbe cause for their decision. No such question exists to embarrass tbe court. “Tbe prejudice and local influence mentioned in tbe statute is not merely a prejudice or influence primarily existing against tbe party seeking a removal. It includes as well that prejudice in favor of bis adversary which may arise from tbe fact that be is long resident and favorably known in tbe community. * * * And tbis implication is no unusual reflection on any particular community or persons. On tbe contrary, it is such a well understood and recognized frailty of human nature that jurisdiction of controversies between citizens of different states was expressly given by tbe constitution to tbe national government, and tbis not only as a means of doing justice, but of facilitating trade and intercourse between the people of tbe several states, which tbe constitution, more than for any other purpose, was formed to protect and promote.” Neale v. Foster, 31 Fed. 53. Tbe motion to remand is refused.