Cowart v. Suncrest Lumber Co.

140 S.E. 736, 194 N.C. 787, 1927 N.C. LEXIS 216

Opinion

Pee CuRiam.

From a careful inspection of tbe record we are of the opinion that the court below was correct in denying the motion for removal of this action by the appellant defendant. This action is in many respects similar to Crisp v. Fibre Co., 193 N. C., p. 77. We repeat what was held in the Crisp action, supra, at p. 85: “The facts alleged in the petition for removal neither compel nor point unerringly to the conclusion that the joinder in the instant case is a fraudulent one and made without right. We hold,, therefore:

1. That when a motion to remove a suit or action from the State court to the District Court of the United States for trial is made on the ground of an alleged separable controversy, the question of separability is to be determined by the manner in which the plaintiff has elected to state his cause of action, whether separately or jointly, and, for this purpose, the allegations of the complaint are controlling. Morganton v. Hutton, 187 N. C., 736.

2. That when the motion to remove is made on the ground of an alleged fraudulent joinder, the petitioner is entitled to have the State court decide the question on the face of the record, taking, for this purpose, the allegations of the petition to be true. To warrant a removal in such case, however, the facts alleged in the petition must lead unerringly to the conclusion, or rightly engender and compel the conclusion, as a matter of law, aside from the deductions of the pleader, that the joinder is a fraudulent one in "law and made without right. Fore v. Tanning Co., 175 N. c., 584.” The judgment below is

Affirmed.