The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-09-15
THE RAILROAD ORGAN BRAYS
AGAIN.

More than four years ago Mr.. James
an engineer and Mr.. Howard, fireman
were killed in an accident on the Yves
tern North Carolina Railroad. If ever
railroad ought to have promptly and
generously helped the widows of men
killed in their employ, this was the in
stance. The courts of the State gave
vcrdicts four years ago for $4,000 to
these widows but by one technicality OF
another thanks to government by in
junction in the Federal court) these good
women have been kept of money that
rightfully belongs to them. A few days
ago the sheriff of Rowan court was or
dcled to put up the Western road and
sell it to satisfy the judgments held by
Mrs. james and Mrs. Howard.
This paper had the temerty to criti-
cizc the Southern Railway for its refusal
to pay the Just claim Of these widows,
whercupon the Morning Post, organ of the
Southern Railroad, took up nearly col
umn of it's editorial space declaring that
the Southern Railroad had nothing what
ever to do with the Western North Caro-
lima road that the Western road does
not now exist; that Mrs. James and Mrs.
Howard made a mistake in not bringing
their suit against the Southern instead
OF the Western road, etc, ETC., closing
with declaring the article in this paper
outrage" AS the Post gets its support
from Southern Railway folks and could
not live day without the subsidy it de-
rives from that source. we may remark
that it is doing it's level best to earn
the money paid for its editorial columns.
What are the facts? The attorneys for
Mrs. James are Hons. A. c. Avery, B. f.
lawyers in the State. At our request,
Judge Avery has written the following
statement:
To the Editor: The Supreme Court OF
North Carolina say, l21 N. c. 523 that
the w N. c. Railroad Company still ex-
lists, and that the pretended purchase
by the Southern, a foreign corporation,
is not valid, because the Southern was
not authorized by the Legislature of
North Carolina to buy the franchise of
domestic corporation and thereby convert
such a railroad company into a foreign
corporation. Chief Justice Furches, for
the court, said that the domestic COM
pany was still equally responsible with
the Southern, which had been allowed to
take possession and operate the road.
The franchise Of the w. n C. Railroad
Company was Sold under a decree of
foreclosure on account of default in the
payment of the interest upon it's second
mortgage bonds, the first mortgage bond
holders still retaining their lien for one
million and a half of bonds, the inter-
est upon which had been paid. If the
company does not exist, say the Court
in effect, how can these first mortgage
bcndholders enforce their prior lien? The
Supreme Court of North Carolina differ
with the informant of the Post when
he says that the company did not and
does not now exist. The only correct in
formation given by him to the Post is
that the attorneys for Mrs. James pre-
fcrred to litigate in the State courts for
reasons which are obvious.
At the May term, 1900, Mr. Price asked
for a mandamus to the Circuit Court be-
low TO change the decree of Judge Ewart,
declaring in express terms that Mrs.
James and Mrs. Howard were not pro-
hibited from proceeding as they might be
advised in the State court. The Circuit
Court of Appeals refused the mandamus,
left them to proceed under the State
laws and they are proceeding to sell.
That court declared also in express
terms that an appeal from any judgment
OF the Supreme Court of North Carolina
the rights of Mrs. James and
Mrs. Howard could only be entertained
by writ OF error to the Supreme Court
OF the United States, which court would
follow the construction given by our
highest court to it's own laws.
Tire Supreme Court of North Carolina
held long ago constituting the Act of 1879,
Code 1855. that a judgment for a tort
committed by a railroad company, con-
stituted lien superior to mortgage
bonds. Tho first mortgage bonds, issued
in 1884, are still outstanding but were
taken by the holders with notice that a
subsequent judgment for negligence
would constitute q lien superior to them.
il the first mortgage bondholders can en-
force their lien by foreclosure sale,
as they unquestionably can, and must
sue the company, of which Col. Andrews
has sworn he is still president, in order
10 obtain such a decree, then Mrs. James
the holder of Judgment for negligent
and wrongful killing, can enforce her
lien declared superior to that of the
first mortgage bondholder, by selling the
franchise of the w. N. G. Railroad Com
pany in the very same way that the first
bondholdors must sell to enforce their
lien.
A. c. AVERY.
Morganton, y. c., Sept. Is. 1901.
Parties who have suits against the
Southern in this section have learned to
their cost that when the Southern gets
them in the Federal court. it is hard
road to securing Justice That is WINS they
prefer to sue in the State courts where