The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-12-07
DISMlSSES THE MOTION
CASE HAS BEEN SENT TO THE
SUPERIOR COURT
IT MUST RENDER THE JUDGMENT
The Superior Court Has no Power TO Change,
Alter or Modify its Judgements Rem
dered al Former Term
nj the Court

The Supreme court yesterday decided
the James case for the second tine 1t
was argued before the conrt two weeks
ago on rule served on the attorneys of
the defendan company ordering them
Ia appear and show cause why a direct
order should rot ne issued COR the exc
cution Of the Judgment for $4,000
formerly rendered by the Supreme courr
in favor of the plaintiff, Mrs. James.
The decision yesterday dismissed this
order for want of jurisdiction. The
opinion of the court was written by
Judge Furches and is as follows:
This action was commenced in the SUI
periOr court of Rowan county to recover
damages for defendants negligently
killing the plaintiffs intestate. Upon
the trial in the court below it was found
that the plaintiffs intestate was killed
by the negligence of the defendant. ana
the jury assessed the damages at S15,-
600. But the court being of opinion that
the plaintiff was not entitled to Judgment
against the defendant. refused to sign a
Judgment in her favor, and gave judg-
ment against the plaintiff for costs.
From this judgment the plaintiff appeal
ed TO this court where the judgment
of the court below was reversed, and the
case certified to that court for judgment
flames VS. Railroad, 121 y. C. 524.)
Upon the opinion of this court being GER
titled to the Superior court of Rowan,
the plaintiff at February term. 1898.
recovered Judgment against the West
ern North Carolina Railroad for S15,-
600. Therenpon $. II. Pearson and
Clemye James, administrators of w. \.
james (Clemye James being the plaintiff
in the action for damages mentioned
above) commenced action against the
Western North Carolina Railroad and in
their complaint they style themselves
creditors of said railroad company, and
that they bring this action not only for
themselves, but for the benefit of all 9th
er creditors of said railroad company,
who may make themselves parties plain
tiff and contribute to the expense of its
prosecution.
This complaint alleges that s. r. Pear
son is the owner of one original share of
stock in said road, and that Clemye
James as administrators of W. 4. James
is a creditor: who recovered Judgment
III tic superior court III ADNdi IbulliS
versus the defendant. The Westeri
North Carolina Railroad Company,
which hears date the 21st day of Feb
ruary, 1893. for the sum of $4,000 and
costs of action, brought for negligent
killing of her intestate, VIM. A. james,
and plaintiffs are advised, informed and
believe that said judgment constitutes
lien upon the franchise and property
OF said company superior to the lien OF
either of said mortgages, even though
the said mortgages would be declared
valid liens"
The above question in paragraph IL of
the complaint, and the reference made
therein to mortgages refer to mortgages
previously mentioned in the complaint.
The said plaintiff alleged that she
could not enforce the James Judgment by
execution; that the defendant had assets
that might be enforced in equity, and
asked for an order of sequestration and
for a receiver.
Upon the filing of this complaint. the
Central Trust Company of New York
brought proceeding in the circnit
court of the United tSates, in which it
alleged that the said railroad road bed.
franchise and rolling stock had been
sold under an order of the Circuit court
of the United States, at which sale the
Southern Railway Company, Virginia
corporation. had become the purchaser.
that said Southern Railway Company
borrowed large amounts of money from
il, and have mortgaged or conveyed said
property TO it i'll trust to secure the pay
ment of said money and interest so Dor
rowed and ask for an injunction against
the plaintiffs. their agents and attorneys
restraining them from the further prose
cution of their suit: which motion upon
notice. was granted by the said Circuit
court of the United States enjoining and
restraining the plaintiffs. s. II. Pearson
and Clemye James. their agents and
attorneys, from further proceeding with
or prosecuting their said suit.
The matter now before this court was
brought to our attention by an affidavit,
filed by the attorneys of Clemye James
on the 10th of November, 1898, in which
the facts herein above set forth taS TO
the James Judgment are substantially
recited; and, attached to this affidavit.
is a notice to the attorneys of the Central
Trust Company to appear on the 18TH
(Which was changed by the court to the
25th) of November. and to show cause.
1. "Why an order shall not be made
that execution issue to enforce the judg-
ment of this court therein, and why the
marshal Of this court shall not be en-
trusted with the duty of leyying said ex.
ecution and enforcing the order of this
court.
9. ITO show cause why the said West
ern North Carolina Railroad Company,
an dts agents and attorneys be not re-
uuired to desist from obstructing the
enforcement of the mandates of this
court, and disregarding its authority.
3. "To show cause why the said COM
pany and its agents and attorneys shall
not be enjoined and restrained from, in
any way, interfering with or obstruct-
ing the enforcement of the said judg-
ment Of this court by leyying the execu-
ton issuing therefrom or otherwise"