Bryson v. Railroad, 141 N.C. 594 (1906)

May 25, 1906 · Supreme Court of North Carolina

141 N.C. 594

BRYSON v. RAILROAD.

(Filed May 25, 1906).

Removal of Games to Federal Courts — -Petition—Filing— Order as to Pleadings.

1. Where, at the-appearance term, the court made an order, to which there was no exception, giving' plaintiff 90 days to file complaint and defendant 90 days thereafter to answer, and after the complaint was filed; demanding $25,000 damages, at the next term the defendant again appeared by counsel and asked for time to answer and was granted 60 days, it was not then entitled to remove the cause to the Federal courts.

ActioN by E.L. Bryson against tbe Southern Railway Co., pending in tbe Superior Court of Jackson County, and beard by Judge Walter PL. Neal upon defendant’s motion to remove tbe cause to tbe Circuit Court of tbe United States.

Tbe petition to remove was filed on tbe 4tb day of December, 1905, before Judge Neal, then presiding in the courts of tbe Sixteenth Judicial District. His Honor denied tbe motion and defendant appealed.

Coleman C. Cowan for the plaintiff.

Moore & Rollins for the defendant.

Brown, J.

The summons was duly returned to Jackson Superior Court, convening on May 22, 1905. At that term tbe court made an order giving plaintiff ninety days to file complaint and tbe defendant ninety days thereafter to answer. There was no exception taken to this order. On September 27, 1905, tbe plaintiff filed bis complaint demanding $25,000 damages. It is contended that until tbe filing of a complaint defendant bad no notice that a sum over $2,000 would be demanded, thus bringing tbe case within the jurisdiction of the Circuit Court of the United States, and therefore could not file his petition until the fact was made known upon which such jurisdiction depends. There might be force in the contention, but that it appears that the defendant did not except to the order granting such time and therefore is taken to have consented to it. It further appears that after the complaint was filed, at the October Term, 1905, the defendant again appeared by counsel and again acknowledged the jurisdiction of the court, and asked for time to answer and was granted sixty days. Of course, the defendant could not be required to answer until after complaint was filed, but when it agreed to the extension of the time for pleading, the defendant submitted voluntarily to the jurisdiction of the State court. If the defendant desired to preserve the right of removal, its counsel should have excepted at the time to the order extending the time within which the pleadings should be filed. Wilcox v. Ins. Co., 60 Fed. Rep., 929; Schipper v. Cordage Co., 12 Fed. Rep., 803. It seems to be well settled “that a petition for removal filed after the statutory period has expired comes too late, even .though filed within the time allowed for answering by the order of the court, where such order is based on the stipulation of the parties. Bank v. Keator, 52 Fed. Rep., 897.

Had the defendant duly excepted to the order extending the time to plead, he should then have filed his petition to remove not later than the October Term, 1905, of the Superior Court, according to the latest decision of the Supreme Court of the United States upon the subject. Remington v. Railroad, 198 U. S., 95. It may be as contended by defendant that such case is authority for the contention that the petition may be filed before the judge at chambers in the district. It has been held otherwise in this State, and as we hold against the defendant on the other point, it is unnecessary to decide this. It is possible, however, that the de-cisión would not apply to our system of practice, wbicb is different from New York, where tbe case originated.

The questions presented on this appeal have heretofore been considered by this court and are fully discussed by the present Chief Justice in Howard v. Railway, 122 N. C., 945, and decided adversely to the contentions of the defendant.

Judgment Affirmed.