22 S.E.2d 214 | N.C. | 1942
Civil action to recover damages for an alleged negligent injury, instituted by plaintiff, a citizen and resident of Lee County, North Carolina, against the defendants, receivers of the Seaboard Air Line Railway Company, citizens and residents of the State of Virginia.
The defendants, in apt time, filed their petition and bond for removal of the cause to the District Court of the United States for the Middle District of North Carolina for trial, on the ground of diverse citizenship. The petition was denied by the clerk, and allowed on appeal to the judge of the Superior Court. From this latter order, the plaintiff appeals, assigning error. We have here the question whether diversity of citizenship between the plaintiff and Federal receivers of a railroad corporation gives the latter the right to remove from the State Court to the United States District Court for trial, a suit brought against them in their official capacity to recover for injuries negligently inflicted to person and property when a train operated by defendants collided with plaintiff's automobile at a grade crossing, and the amount demanded exceeds $3,000. The trial court answered in the affirmative, and we cannot say there was error in the ruling. Davies v. Lathrop, 12 Fed., 353.
The petition for removal, besides showing the presence of the requisite jurisdictional amount, asserts a right of removal on the ground of diverse citizenship, or that the suit is one "wholly between citizens of different States," to use the language of the Judicial Code. U.S.C.A. Title 28, sec. 71. The plaintiff is a resident of Lee County, this State. The defendants are residents of the State of Virginia. They are Federal receivers of the Seaboard Air Line Railway Company, having been appointed as such in an action pending in the United States District Court for the Eastern District of Virginia. *135
It is alleged that on 4 December, 1941, the plaintiff sustained an injury to her person and property amounting to $5,250.00, when her automobile in which she was driving was negligently struck by a Seaboard Air Line Railway passenger train at a street crossing in the town of Sanford, the said train being operated at the time by agents and servants of defendants.
If the defendants are entitled to stand on their own citizenship, as intimated in some of the cases, Biggs v. Bowen,
It was held in Brisenden v. Chamberlain, supra, that the defendant therein, receiver of the South Carolina Railroad Company, being a resident of New York, could remove for trial to the Federal Court a suit brought against him in his official capacity for causing death by wrongful act, although the railroad company itself was chartered under the laws of South Carolina, the State in which the suit was brought. The decision was grounded on the following quotation from Amory v. Amory,
In the recent case of Mecom v. Fitzsimmons Drilling Co. (1931),
Conceding all that is said above, the plaintiff relies upon U.S.C.A. Title 28, sec. 125, which provides: "Every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property without the previous leave of the court in *136 which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such manager or receiver was appointed so far as the same may be necessary to the ends of justice."
This section abrogated the rule that a Federal receiver could not be sued without leave of the court appointing him, and gave the citizen the unconditional right to bring his action in the local courts. Tex. Pac. Ry.v. Johnson,
No reference is made to the right of removal, but it was observed in theGableman case, supra, that the manifest object of the section "would be open to be defeated if the receiver could remove the case at his volition." This much is here conceded. The defendants point out, however, that the Court was there speaking to a petition filed by a Federal receiver to remove solely "upon the ground that it was a case arising under the Constitution and laws of the United States." The question of diverse citizenship was neither presented nor considered, and while the language "He ceased to be compelled to litigate . . . in any other forum . . . than he would be entitled to if the property or business were not being administered by the Federal Court," under one interpretation, might be broad enough to cover a case like the present, it is recalled that in U.S.v. Burr, 4 Cranch, 469, Chief Justice Marshall opined: "Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered." The question of removal on the ground of diverse citizenship was not before the Court in the Gableman case, supra. 14 Am.Jur., 295.
The defendants go further and concede that the instant suit is not against them "for or on account of any act done under color of his (their receivership) office," Ray v. Ruff,
In reply, the plaintiff says that notwithstanding the narrowness of the ground upon which the Gableman case, supra, might have been decided, the fact is a general interpretation of the section was announced in order to clarify its meaning and as a guide to the lower courts in future cases. U.S.v. Poller,
The precise question here presented seems not to have been decided by the Court of last resort. At least, the diligence of counsel and our own research have failed to discover such a decision. The pertinent statutes and the general pronouncements of the Supreme Court, however, engender the conclusion that the right of removal exists. "There can be no doubt that suits against a receiver appointed by a court of the United States brought in the State court may be removed for trial to the United States District Court of the district where pending when diversity of citizenship and requisite amount in controversy exist" — Ray, District Judge, inMatarazzo v. Hustis (1919), 256 F., 882.
Hence, for the reasons above stated, the demurrer to the petition to remove, first interposed in the Superior Court and renewed in this Court, was properly overruled in the Superior Court and must be overruled here.
The result is an affirmance of the judgment below.
Affirmed.