Burleson v. . Snipes

190 S.E. 220, 211 N.C. 396, 1937 N.C. LEXIS 104

• Court: Supreme Court of North Carolina
• Decided: March 17, 1937
• Status: Published

Opinion

Pee Cueiam.

It has been uniformly held by this court that the right of removal of a cause from a state court to the United States Court on the ground of separable controversy must be determined by the facts set forth in the complaint. Timber Co. v. Ins. Co., 190 N. C., 801; Hughes v. R. R., 210 N. C., 730; Rucker v. Snider Bros., 210 N. C., 777. In the instant case the complaint alleges a cause of action against the resident defendant Snipes and the petitioner for damages for failure to surrender an automobile title certificate. The plaintiff alleges that this certificate had been attached to a title retention contract given by him to defendant Snipes to secure the balance due upon the purchase of a motor truck, and that the defendant Snipes sold and assigned said title retention contract, with the certificate attached, to the defendant C. I. T. Corporation; and that upon payment of the balance due on his debt to the O. I. T. Corporation the latter wrongfully failed and refused to surrender to the plaintiff the title certificate, causing substantial damage to him.

It is manifest that plaintiff has alleged as to the petitioner a cause of action independent and distinct from the resident defendant, and that the petitioner is entitled to have same removed to the United States Court. Brown v. R. R., 204 N. C., 25; Crisp v. Fibre Co., 193 N. C., 77; Timber Co. v. Ins. Co., supra.

The judgment below is

Affirmed.