81 S.E. 624 | N.C. | 1914
This is an appeal from the refusal of a motion to remove the cause to the United States District Court. The summons was served 7 August, 1912, returnable to September term of the Superior Court of Mecklenburg. Complaint was filed on 25 September, 1913. On 11 October the defendant asked for time to file answer until the last day of the next term of the court, and by consent of the plaintiff the order was made accordingly, and thereafter, on the same day, the defendant's counsel presented to the court the petition and bond for the removal of the cause.
(418) The entering into the stipulation for an extension of time to file the answer, which was duly approved by the judge, was a general appearance in the State court and waived the right to remove. It was an acceptance of the jurisdiction of the State court. Howard v. R.R.,
Besides, the petition to remove does not sufficiently allege a fraudulent joinder. "Where resident defendants are joined with a nonresident, and the latter applies for removal for fraudulent joinder, the question of fraud can be raised only by stating facts from which the fraudulent joinder necessarily appears, and not by a single averment of fraud or by alleging fraud in general though positive terms that the residents were joined for the sole purpose of applying for removal, and not with the *375
honest intent of seeking relief against them." Smith v. Quarries Co.,
The complaint filed by the plaintiff states a joint cause of action against each of the defendants. All three defendants are charged with operating and maintaining (as principal and subsidiary companies) a line of wire which caused the death of the plaintiff's intestate. It is fundamental as well as elementary that the allegations set out in the complaint are to be construed by the State court as true, upon the petition for removal. "Whether there was a joint liability or (419) not, was a question to be determined upon the averment of the plaintiff's statement of his cause of action, and is a question for the State court to decide." R. R. v. Sheegog,
In Staton v. R. R.,
In this case the complaint alleges joint ownership and joint negligence against all these defendants, and on the face of the complaint a joint cause of action is alleged against each of the defendants, one of whom is a resident of this State. It is not material that the actual purpose of the plaintiff in joining the resident defendant was to prevent the removal to the Federal court. Armstrong v. R. R., 192 Fed., 608; R. R.v. Dowell,
It is true that when a verified petition for removal is filed, accompanied by a proper bond, and the petition contains facts sufficient to require a removal under the statute, the jurisdiction of the State court is at an end. But this applies only when the allegations of fact are such as to authorize the right of removal, and not when the petition on the ground of alleged fraudulent joinder merely asserts, as in this case, fraud and bad faith in general terms, without a full (420) *376 and direct statement of facts sufficient to demonstrate a fraudulent purpose. Where such facts are sufficiently alleged, and there is a denial, then the issue arising must be determined by the Federal court. Smith v.Quarries Co., supra.
Rea v. Mirror Co.,
In this case the plaintiff has sued three defendants, alleging a joint cause of action against them all, and the only allegation is the charge of bad faith and that the resident defendants are not guilty of negligence and did not own or operate the wire. All the latter allegations are mere matters of proof and defense, and there was nothing presented in the State court, other than this "broadside" allegation, upon which it could base a finding as to the charge of fraudulent joinder.
It is well settled that the State court should not surrender its jurisdiction unless the petition shows upon its face a removable cause and unless such petition and accompanying bond are filed in the State court within the time required by the act of Congress. R. R. v. Daugherty,
That court is not paralyzed by the simple presentation of a petition to remove. It is true, the Federal court may, not withstanding the refusal of the State court to remove, send a certiorari to the State court for the transcript of the record, which the clerk of the State court must obey. In such case, as was said in Howard v. R. R., 122 N.C. at p. 953: "The strange spectacle may be presented of the same cause (421) between the same parties being tried at the same time in the State court and in the Federal court, and finally going up to the United States Supreme Court by different routes. Upon the final decision of that tribunal, the proceedings of the court which is held not to have had jurisdiction are simply a nullity. Such unseemly cases have occurred, but rarely (Carson v. Hyatt,
The refusal of the motion to remove is
Affirmed.
Cited: Patterson v. Lumber Co.,
