Lewis v. Clyde Steamship Co. ( 1902 )

FURCHES, C. J., and MONTGOMERY, J., dissenting. This was an action to recover salvage or compensation for saving a vessel called the "City of Jacksonville," which was stranded on Whalebone Inmet Beach. The summons in this case was issued returnable to the March Term, 1901, of the Superior Court of Carteret County, and as no complaint was filed at that term an entry was made as follows: "Time to file pleadings." On 31 July, 1901, the plaintiff filed his verified complaint, demanding judgment for $2,444.74, and on 17 August, 1901, the defendant filed its petition and bond for the removal of said cause to the U.S. Circuit Court, and served notice on the plaintiff that at the next term of the Superior Court of Carteret County a motion would be made to have said cause removed. At the September Term, 1901, of said court, the defendant made its motion to have said cause removed, which motion was refused. The defendant filed its exception.

The motion was properly refused on two grounds, either of which would have been sufficient. The petition states that the defendant petitioner "was, at the time of the commencement of this suit, and still is, a citizen of the State of Delaware, and of no other State, and a nonresident of the State of North Carolina." It is well settled that a petition for removal must, in addition to the allegation that the defendant is a nonresident of the State of North Carolina, specifically state that the defendant is a corporation existing under the laws of another State, giving the name of the State by which it was created. Springsv. R. R., 130 N.C. 186; Thompson v. R. R., ibid., 140; Ins.Co. v. French, 18 How., 404; Mullen v. Dows; 94 U.S. 444; Pennsylvania v. Quicksilver Co., 10 Wall., 553. Moreover, the petition was not filed within the time limited by the federal statutes of removal. Howard v. R. R., 122 N.C. 944. It is contended that the defendant was not required to file its petition for removal until after the filing of the complaint, (654) inasmuch as the right of removal would be governed by the sum demanded. This does not alter the effect of the statute. If the complaint had not been filed within the first three days of the term to which it was returnable the defendant could have moved to dismiss. If it failed to do so and, on the contrary, consented to an extension of time for the filing of pleadings beyond the return term, it lost its right of removal. The answer alleges that the defendant was misled by the statements of the plaintiff's counsel as to the sum that would be demanded in the complaint, but we cannot find any proof of this allegation. In our view of the case it resolves itself almost entirely into an issue of fact. The plaintiff alleges that he was employed by defendant company, acting through its duly constituted officers, that he faithfully performed the services required of him, and earned the compensation demanded. He testified, among other things, that he went to the general office of the defendant in New York City where he made the contract declared on, with men whom he knew to be officers of the company. He further testified that the vessel in question were the Clyde colors; that there was a large C on the flag fastened to the flag-staff; that the life-preservers, buckets, bedclothes, tableware, boats and oars were all marked C. S.C. He also said he had some correspondence with the Clyde Steamship Company, the defendant in this action. This was at least some evidence tending to prove that the plaintiff made a contract with the defendant as alleged, and that the defendant had some substantial interest in the vessel. The defendant denies these allegations in its answer, but fails to offer any proof, except two papers from the records in the U.S. Custom House in New York, tending to show that the vessel belonged to the De Bary Bays Merchants' Line of New York, of which Marshall Clyde was president. The credibility and weight of this evidence were for the determination of the jury, who found that the plaintiff did contract with the defendant to render the services set out in the complaint, and that the defendant (655) was indebted to the plaintiff, on account of such services, in the sum of $2,000. They also found that the defendant did not own the vessel at that time and that the contract was not in writing. Under the view taken of the case in the court below, in which we concur, these latter issues do not seem to be material.

The defendant's counsel contend that the contract sued on was ultravires of the defendant. Even if the evidence had tended to sustain this contention we think that such a defense is in the nature of confession and avoidance. There are various exceptions to the evidence, as well as to the charge of the court, none of which can be sustained. In the absence of essential error the judgment is

Affirmed.