The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-01
Cunningham and Hin
shaw VS.. S. A. |.
OPINIONS WERE FILED
Supreme Court Hands Down Decisions
in a Number of Cases. A Navel
Contempt Matter Eleventh
District Appeals
Heard.

Supreme court opinions lleu yeSleI-
day.
The decisions as a rule do not af-
feet cases of State interests. although
several are interesting in the facts, if
not in the law.
Among these are the cases of Bid
we'll VS.. Bidwell the sensational di-
vorce matter growing out of the mar
riage of a North Carolina woman Of
the West, one of the Enloes, to
Massachusetts man who she alleges
afterwards deserted her and the case
of Cunningham and HinshaW VS.. >.
A. L.. which is of local interest grow
ing out of the burning of the cotton
compress at Hamlet. In the B1dWell
case it is decided that the decree IF
divorce in the Massachusetts court
or rather the decree in the court of
that State UNFOLDING the divorce
granted the husband in Dakota-is
an estoppel on the plaintiff. In the
HinshaW case it is held that. having
received the value of the cotton burned
from the insurance companies the
plaintiffs have no right 70 maintain
an action for damages by reason of
negligence of defendant railroad.
A curious case is that in which the
Clerk of the Court of Guilford county
attempts to hold an executor for COLI
tempt in failing to prove will in his
jurisdiction instead of III another
county in which he elected to prove
the paper.
Digests of Opinions.
Digests of opinions handed down
follow:
THREE SLUG THREE
j. l.. Propst appellant, VS.. Southern
Railway; from Guilford. No Error.
Action for personal damages
brought in Guilford county. The de-
PENDANT moved and the Court ordered
the removal of the trial to Rowan
county where It was found as fact
the plaintiff resided. under chapter
367 of Acts of 1905. amending section
1872 of the Code. The Code. section
1872, provides that trials shall be had
where both defendants and plaintiffs
reside, and, if none of the defendants
reside in such county then in the
county designated by the plaintiffs in
the summons and complaint, subject
however, to the power of the Court to
change the place of trial as provided
by law. Sect. 367, Laws of 1905,
amended the section as follows:
provided, That in all actions
against railroads the action shall be
tried either in the county where the
cause of action arose, or in some other
county adjoining the county in which
the cause of action arose, subject how
ever to the power of the Court to
change the place and trial in the
cases provided by the statute"
1t was contcnded bys plaintiffs that
the proviso of 1905 applied only to
corporations residing in the State.
Held: 1. The general office of pro-
viso is to except something from the
enacting clause or to qualify or re-
in, &c if1r tn Ind "a
some possible ground of misinterpre-
tation of it, and usually it is not per-
mitted to enlarge the meaning of the
enactment to which it is appended, SO
as to itself operate as a substantive en-
actment.
2. The main object of a proviso, al
though not bound by absolute rules,
is considered as being to enforce the
will of the legislature as it is man
ifested by the entire enactment.
3. In such case, giving to the act of
1905 its ordinary meaning, the con-
clusion is that the purpose was to
extend it's provisions to all railroads.
both domestic and foreign.
j. G. Mabry vs.. n. G. II. II. Co, appel |
liant; from GuiIford. Affirmed.
Held: That the doctrine established
by section Sc Private Laws of 1897. |
relating to injuries received by reason
of negligence of fellow-servants en-
ployed by q railroad is sustained: and
examination of the record failing to
disclose any error in the charge of the
Court or anv admission of incompetent
Cunningham & Hinshaw, appellants.
VS.. S. A. l.. R'y. Affirmed.
Where in an action for damages for
cotton burn while in compress by the
negligence of g railroad, it appears
that said cotton was insured and that
The loss was paid to plaintiff:
Held: That Notwithstanding the
fact that said payment purDorted to
be a lean pending recovery from the
carrier. there was such insurance in
force on the cotton under the statute
(Which is merely declaratorv of the
;aw) as to make the insurance com
pany the real party in interest, by
whom alone by subrogation, could an
action against the carrier be main
tanned.
In the Matter of the Will of S. w.
Scarborough. Appeal by a. G. and
Clyde Scarborough: from Guiiford.
Affirmed.
The testator died in Lenoir county
leaving a will. The Clerk of the Court
of Guilford county, being of opinion
that he was a resident of said county
on May 81 appointed a collector of the
estate and issued notice to the re-
spondent, who had the will of the de-
ceased in his possession, to exhibit the
same for probate in Guilford county
Thereupon the respondent on the same
day consulted counsel in kinston ana
delivered the will to the Clerk or the
Court of Lenoir county. who pro-
hated the same. Afterwards the re-
spondent went to the office of the
Clerk of the Court of Lenoir county
and requested that he surrender the
will, which he refused to do. The
Clerk of the Court of Guilford county
found the respondent guilty of con-
tempt in not producing the will and
sentenced him to Jail pending the pro-
duction of the paper. On appeal the
| respondent was discharged by the
| Court.
Held: That although it was the dut!
of the respondent to have obeyed tn
notice of the Clerk of the Court 0
Guilford county, the refusal of tn
Clerk of Lenoir county to deliver tn
will to him. relieves him of any cor