Van Dyke v. Prudential Insurance

ClaeKSON, J. Tbe sole question presented by tbis appeal is whether tbe above-entitled action bas been legally removed from tbe Superior *207 Court of Pitt County to the United States District Court at Washington, North Carolina. If the case has been legally removed the judgment should be affirmed. If not so removed, plaintiff, appellant, contends that the judgment is erroneous. Appellee, defendant, contends that the appeal should be dismissed upon an inspection of the record. This action was instituted in the Superior Court of Pitt County by plaintiff, a resident of Pitt County, against defendant, a corporation chartered in New Jersey and organized in that State, and a resident and citizen of that State. Defendant was duly licensed to carry on the business of soliciting applications for insurance in this State. The sum demanded by plaintiff was $5,000. In apt time, defendant filed, after due notice to plaintiff, a petition duly verified in the usual form, and setting forth a cause for removal; and with good and sufficient bond in the sum of $500, in connection with said petition; and the clerk of the Superior Court of Pitt County, duly approved said bond as to its form, sufficiency and solvency. All this was accomplished in the due and regular course of practice, as prescribed by the statutes of the United States and of this State, governing removals to the United States Court; and all was done within the times required by the statutes of this State. The clerk of the Superior Court of Pitt County, on hearing the petition of defendant and considering the same, made an order removing the action to the United States District Court at Washington, North Carolina, and duly certified the proceedings, and transmitted the record thereof to said United States Court, where the same was duly docketed and is now pending.. Plaintiff gave notice of an appeal from the clerk’s order to the Superior Court of Pitt County, and plaintiff’s -appeal was heard at August Term, 1926, of said court; and his Honor, Judge Sinclair, affirmed the ruling of the clerk, and found as facts that “This action was one between citizens of different states, and that the sum in issue exceeded $3,000.00, exclusive of interest and costs; that petition duly verified was filed by defendant within the time prescribed by statute, and notice given to plaintiff, and that a bond conditioned according to law, and satisfactory as to solvency and form was duly filed; that .the clerk of this Court duly made an order removing the cause to the United States District Court for the Eastern District of North Carolina-Washington Division; and that transcript of the record has been forwarded to the clerk of said United States District Court; and that the cause was removable under the act of Congress governing removal of causes; and that the act of the clerk of this Court was in all respects regular and in accordance with the statute and in conformity to the practice obtaining in the removal of causes.” *208 From tbe judgment of tbe Superior Court rendered at said August Term, affirming tbe order of tbe clerk, tbis appeal was taken by plaintiff, for tbe sole purpose of obtaining from tbis Court a decision upon tbe removability or nonremovability of tbis cause. Plaintiff contends: “That no court existing under and by virtue of tbe laws of tbe State of North Carolina bas tbe power to remove an action from tbe courts of tbe State to tbe United States courts wherein any action is brought upon an insurance policy which was issued by a company qualified to do business in tbis State under chapter 106, Consolidated Statutes.” And in reaching that conclusion, plaintiff asserts, that “Tbe defendant bas established a power of attorney, complied with tbe law which enabled it to do business in tbis State, and thereby became a domestic corporation for that purpose. In complying with tbis requirement of tbe law and doing business in -this State under tbe said requirements, it bas waived its right to remove a cause to tbe United States Court, and is estopped thereby.” Tbe argument of plaintiff’s counsel as to tbe right of tbe State in tbe case at bar is persuasive, but cannot be binding. We are controlled by tbe decisions of tbe Supreme Court of tbe United States. These decisions have been followed, in duty bound, by tbis Court. Southern Railway Co. v. Allison, 190 U. S., 326, 47 L. Ed. 1079, (Reversing Allison v. Southern Railway Co., 129 N. C., 336, 40 S. E., 9); Terral, Secy, of State of Ark., v. Burke Con. Co., 257 U. S., 529; Powell v. As surance Society, 187 N. C., 596; Timber Co. v. Ins. Co., 190 N. C., p. 801; Huntley v. Express Co., 191 N. C., p. 696. Hon. Chester I. Long (U. S. Congressman and. Senator), President of tbe American Bar Association, in bis address at Denver, Colorado, 14 July, 1926, said, in part: “Tbe one protection for tbe liberty of tbe individual is in tbe Supreme Court of tbe United States. Tbe power bas been exercised for over a century to declare when an act of Congress or of a state legislature is not a law because it violates tbe Constitution of tbe United States. . . . Liberty will abide here if we maintain our dual nation; it will disappear when we destroy tbe even balance between tbe national and state governments. . . . Tbe advance of tbe organized American Bar in tbe preservation of tbe liberty of man, woman and child is very reassuring. Let us hope as tbe organized Bar increases in members, power and influence that the blessings of liberty and of local self-government may be made more secure to ourselves and to our posterity." Mizzell v. R. R., 181 N. C., p. 36, cited by plaintiff, is not analogous. In that case tbe Atlantic Coast Line Railroad Company was a domestic corporation. Tbe judgment below is Affirmed.