Newberry v. Meadows Fertilizer Co., 163 S.E. 116

163 S.E. 116 | N.C. | 1932

This action was heard on the demurrer of the defendant, Meadows Fertilizer Company, on the ground that it appears on the face of the complaint filed by the plaintiffs therein (1) that there is a defect of parties plaintiff; (2) that there is a defect of parties defendant; (3) that several causes of action have been improperly united in the complaint; and (4) that there is a misjoinder of parties and of causes of action. The demurrer was overruled.

The action was further heard on the appeal of the defendants, Davison Chemical Company and C. Wilbur Miller, from the order of the clerk of the Superior Court of Craven County, denying the petition of said defendants for the removal of the action from said Superior Court to the District Court of the United States for the Eastern District of North Carolina, for trial, on the ground of diversity of citizenship, and separability of causes of action alleged in the complaint against the resident defendant, Meadows Fertilizer Company, and the nonresident defendants, Davison Chemical Company and C. Wilbur Miller. The order of the clerk was affirmed and the petition of the defendants for the removal of the action was denied.

From judgment overruling the demurrer, and affirming the order of the clerk, the defendants, respectively, appealed to the Supreme Court. The judgment overruling the demurrer of the defendant, Meadows Fertilizer Company, to the complaint in this action, is affirmed on the authority of Trust Co. v. Peirce, 195 N.C. 717, 143 S.E. 524. Speaking of the complaint in that case, it is said: "A connected story is told, and a complete picture is painted of a series of transactions, forming one general scheme, and tending to a single end. This saves the pleading from the challenge of the demurrer." This principle is applicable to the allegations of the complaint in this action, and for this reason the demurrer was properly overruled. The allegations of the complaint are sufficient to show a series of transactions, the result of a general scheme, participated in by the defendants, and resulting in damages which the plaintiffs are entitled to recover of the defendants, jointly and severally.

The judgment affirming the order of the clerk, and denying the petition of the defendants, Davison Chemical Company and C. Wilbur Miller, for the removal of the action from the State to the United States Court, for trial, is affirmed, on the authority of Fenner v. Cedar Works, 191 N.C. 207,131 S.E. 625. In that case it is said: "It is established law that the complaint is the sole basis for determining the nature of the cause of action against the various defendants and that a joint tort action is not separable." The cause of action alleged in the complaint in this action against both the resident and nonresident defendants is joint and not separable. For this reason, the petition of the nonresident defendants was properly denied.

As we interpret the allegations of the complaint, the cause of action stated therein is a wrongful and unlawful conspiracy entered into by the defendants, resulting in damages which the plaintiffs are entitled to recover of the defendants. The complaint is not subject to demurrer, as contended by the defendant, Meadows Fertilizer Company, nor is the action, removable, as contended by the defendants, Davison Chemical Company and C. Wilbur Miller. The judgment is

Affirmed.