The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-26
SAY IT IS SPEc|OyS
No Prejudice in Durham
Against the Southern.
Ssaboard Says Southern Should Not Try 10
PerpIex Judges but Should Contest at
Home.


The motion to reward the suit of the
Seaboard Air Line against the Southern
Railway. Oxford and Clarksville Railroad
and the North Carolina Railroad together
with various individual defendants wa.
argued here before Judge Purnell yester-
day. Judge r. w. Winston and Mr.. H
A. Foushee represented the Seaboard Ali
Line and Mr.. +. H. Busbee represented
the Southern.
In their argument Judge Winston and
Mr.. Foushee contended as follows:
ID That this controversy was not sep
arabic.
Cd That it was very doubtful which OF
the defendants owned the strip of land
IN the street. That if the North Caro-
lima Railroad had forfeited its right to
the same by sale of eighty feet thereof
to the Oxford and GAINESVILLE in 1891 the
land SO forfeited now belonged to the
heirs of the original owners.
CO. That under the former opinion of
Judge Purnell In branch of this case,
all of the above defendants are necessary
parties to the proceeding
This led up to the fourth and main
point In the case, this being that under
the act of Congress of 1888 no case can
be removed from the State court to the
United States court where some OF the
defendants reside in the State where the
cause is pending. 1t was conceded that
there was an inseparable controversy and
that if any position of the same was re-
moved the whole case, including all of
A.. ~ h1. fhn
United States court.
(5.) The Seaboard Air Line commended
that there was no prejudice against the
Southern Railway in Durham and that
that road ought no longer under this
specious plea to be permitted to dump
all local legislation into the United States
court to perplex the judges with matters
which ought to be decided at home.
II was conceded that this point had
not been decided by the. Supreme Court
of the United States nor is there any de-
cision at Circuit in the Fourth Circuit.
The trend of modern rulings along this
line as shown by several cases cited is to
the effect that no cause can be re-
moved to the United SIa,es court on
the ground of prejudice except
wheer all the defendants are residents OF
ASOo,
which is almost word for word with the
statute of 1888. has been construed by the
Supreme Court of the United States and
this construction has been given to the
earlier statute.
The only exceptions to the rule which
prohibit renewal to the United States
Court where some of the defendants re,
side in the State are % where there is a
separable controversy, and CD where par
ties have been made defendants only col
orably and In order to hold the case In the
State court 1t being conceded that this
is an inseparable controversy and that all
of the defendants are necessary parties to
a proper determination of the entire con-
troversy it was maintained that the cause
should be remanded to the State court.
Mr. Fabius Fl. Busbee, representing the
Southern cited several earlier cases to the
effect that even an inseparable coatro-
versy might be removed to the Omitted
States Court in cases where there were
resident defendants.
The contention of the defendant South
ern Railway, he argued. was that under
the act of 1887 any defendant. being cit
izen of another State (the plaintiff being
a citizen of North Carolina) could remove
the case, even though its co-defendants
were citizens of the same State as the
plaintiff. This, he held, is supported by
decisions from the Circuit Courts OF many
States: Tennessee, Michigan, Kentucky,
Georgia, Nevada, Alabama and others, al
so by Judge billions Removal of Causes,
Foster and perhaps another text book.
The latest work on the subject of Re
moval of Causes is by Mr.. Moon, OF the
Indiana bar. This work appeared in 1901
and in it it is declared that the Supreme
Court of the United States viii construe
the act of 1888 on the subject of removal
for local prejudice just as it construed the
act of 1868 on the same subject and will
remand all such case to the State Court.
In this district removals for the cause
have been sustained in practice, though
no reported case was cited
The Supreme Court of the United States
lad not yet given decision upon the
subject though it would seem that an i'm
portant point of practice ought to be de-
cided by some controlling tribunal, so
that the practice could he uniform.
Judge Purnell took teh papers and will
hand down his opinion a sto the authority
of the court in the matter in fe wdays.