Opinion
(January Term, 1873.)
When a summons has been served, and the complaint filed, the case is pending sufficiently to entitle a party to remove it to an adjoining Judicial District, if the presiding Judge is a party to the suit. Laws 1870-'71, ch. 20.
MOTION before Henry, J., at chambers, in BUNCOMBE, on 15 November, 1872.
Battle Son for appellants.
J. H. Merrimon, contra.
A summons had issued against the defendants, as officers of the Western Division of the Western N.C. Railroad (Judge Henry being one of them), returnable to Spring Term, 1873, of BUNCOMBE. This summons was served "by delivering copies to the defendants, 27 September, 1872." The complaint had also been filed, and the plaintiff had served a notice on the defendants to appear before his Honor at chambers, and show cause why the case should not be removed to some county in an adjoining Judicial District, in accordance with the provisions of ch. 20, Laws 1870-'71, for the reason that the presiding Judge was a party-defendant. There was a prayer in the complaint, for an injunction, which the plaintiff desired heard in vacation.
It was agreed, upon the hearing of the motion, that the presiding (347) Judge, though nominally one of the Board of Commissioners, appointed under an act of the General Assembly in 1869-'70, yet had not officiated in any of the material transactions of the Board; and the plaintiff offered that there might be a nol. pros. as to him, which was accordingly entered.
The defendants contended that the case could not yet be removed, because no answer had been filed, and the case had not been put at issue, nor had there been due return made of it, at the regular term to which the summons was made returnable.
His Honor ordered the cause to be removed, and the defendants appealed.
We think it unnecessary to examine critically Laws 1870-'71, ch. 20, p. 56, authorizing the removal of actions brought in the Court of a Judge who is a party to, or interested therein. The policy of the Act is obviously to enable any such action to be removed as soon as it is in a condition in which the Judge may be called on to take any action in it which may affect the interests of the parties. For the purposes of that act, the action is then pending.
PER CURIAM. Affirmed.
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