Opinion
(Filed 4 March, 1925.)
Removal of Causes — Federal Court — Order to Remove — Waiver.
Under the facts of this case: Held no error in the ruling of the Superior Court judge that defendant had not waived his right to the removal of the cause from the State to the Federal Court under a former order by offering copies of the papers in the case to the clerk of the State court to be used as a part of the record to be transmitted.
APPEAL from Barnhill, J., at January Term, 1925, of PITT.
Julius Brown and Ward Grimes for plaintiff.
F. G. James Son for defendant.
The following findings of fact and order were made by the court below:
"This cause of action coming on to be heard before his Honor, M. V. Barnhill, judge presiding at the January Term, 1925, of Pitt County Superior Court, upon the appeal of plaintiff from the order made by J. F. Harrington, clerk Superior Court of Pitt County, overruling plaintiff's motion to set aside and vacate the order of removal made by said clerk on 8 November, 1924, and being heard, the court finds the following facts: The court adopts the findings of the clerk and the following facts in addition thereto; from evidence of E. F. Tucker, D.C.
"That attorney for defendant carried answer to the deputy clerk and left it with him to be filed in order that all original papers could be sent up to the Federal Court and save the necessity of making certified copies thereof, stating at the time and calling to the attention of the deputy clerk that an order of removal had already been signed by the clerk.
"Upon said finding the court is of the opinion and so finds that the defendant by its action did not waive its right to removal nor make such general appearance in the cause as would estop it from insisting thereon.
"It is therefore ordered and adjudged by the court that the order of said clerk be and the same is affirmed and that this cause be and it is hereby removed to the District Court of the United States for the Eastern District of North Carolina, sitting at Washington, N.C. and the clerk of the Superior Court of Pitt County, North Carolina, is hereby directed to make up the record of this cause by transmitting all the original papers on file in said cause to the said District Court of the United States for the Eastern District of North Carolina."
The plaintiff duly excepted to the findings of fact and order above set forth, assigned error and appealed to the Supreme Court. After hearing the argument and examining the record, we can find
No error.