Frazier v. Piedmont & Northern Railway Co. ( 1931 )

Civil action to recover damages for an alleged wrongful death, brought against Piedmont and Northern Railway Company, a corporation chartered under the laws of the State of South Carolina, and F. E. Williams, citizen and resident of Mecklenburg County, N.C.

Motion by nonresident, corporate defendant to remove cause to the District Court of the United States for the Western District of North Carolina for trial. Motion allowed, and plaintiff appeals. 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. Lumber Co., 193 N.C. 28, 136 S.E. 254,Johnson v. Lumber Co., 189 N.C. 81, 126 S.E. 165, and Rea v. MirrorCo., 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, he who alleges error must successfully handle the 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 the appeal must be dismissed. There is no summons in the record or anything to indicate that the 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 hold it, and at the 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.