Georgia-Carolina Brick & Tile Co. v. Merry Bros. Brick & Tile Co.

Court of Appeals of Georgia

Georgia-Carolina Brick & Tile Co. v. Merry Bros. Brick & Tile Co.

44 S.E.2d 63, 75 Ga. App. 637, 1947 Ga. App. LEXIS 600

CourtCourt of Appeals of Georgia

DecidedSeptember 10, 1947

Docket31566.

StatusPublished

Cited by1 cases

This text of 44 S.E.2d 63 (Georgia-Carolina Brick & Tile Co. v. Merry Bros. Brick & Tile Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Georgia-Carolina Brick & Tile Co. v. Merry Bros. Brick & Tile Co., 44 S.E.2d 63, 75 Ga. App. 637, 1947 Ga. App. LEXIS 600 (Ga. Ct. App. 1947).

Pincite

Opinion

Townsend, J.

(After stating the foregoing facts.) The district courts of the United States shall have original jurisdiction of all suits of a civil nature at common’law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum of $3000, and is between citizens of different states. See Title 28, sec. 41 (1), U. S. C. A. When such suits are brought in State courts, thej>' may be removed to the United States district court having jurisdiction thereof, upon proper and timely application being made to the State court therefor. Title 28, sec. 71, U. S. C. A. When such application for removal is made in the State court in proper form and substance, and accompanied by the required bond, the State court is required to remove said case, if, upon hearing the application for removal, the record discloses a right to remove. The State court may act on the law, but not on the facts. If any ground stated in the petition for removal is well taken, it is error for the State court to proceed with the cause. The right to removal depends on the case disclosed by the proceedings when the petition therefor is filed. See Simkins on Federal Procedure, sec. 1035. The district court of the United States will not permit the plaintiff to join formal parties, or fraudulently join with the defendant parties whose citizenship would defeat a diversity of citizenship, and thereby prevent removal. Eemoval cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. If in such a case a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly leading to that conclusion, apart from the pleader’s deductions. The petition must be verified, and its statements must be taken by the State court as true. If a removal is effected, the plaintiff may by a plea or answer take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the Federal Court. See Simkins on Federal Procedure, sec. 1072. In construing the pleadings, this court accepts as true all the allegations of fact contained in the petition for removal, as indeed it must. However, the allegations that Wm. E. Bush was joined by the plaintiff *640 fraudulently and solely in an effort to evade Federal jurisdiction, and that he is in no way responsible for any acts, as an individual for the Georgia-Carolina Brick & Tile ■ Company, are treated as the pleader’s deductions based upon the other allegations of the petition which, do not rightly lead to that conclusion.

The petition of the plaintiff, also assumed to be true (see Phillips v. International Agricultural Corp., 54 Ga. App. 755-758, supra), sets out a cause of action against both defendants, properly joined, and is not separable. The- fact that the individual resident defendant is an officer of the corporation does not exclude him from personal liability. See Code, § 105-1207; Belt v. Western Union Telegraph Co., 63 Ga. App. 469 (11 S. E. 2d, 509); Graham, v. Dahlonega Gold Mining Co., 71 Ga. 296; Postal Telegraph-Cable Co. v. Puckett, 24 Ga. App. 458 (101 S. E. 397).

We conclude, therefore, that the judgment of the trial court denying the application for removal is without error.

Judgment affk'med.

MacIntyre, P. J., and Gardner, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Townsend, J.

(After stating the foregoing facts.) The district courts of the United States shall have original jurisdiction of all suits of a civil nature at common’law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum of $3000, and is between citizens of different states. See Title 28, sec. 41 (1), U. S. C. A. When such suits are brought in State courts, thej>' may be removed to the United States district court having jurisdiction thereof, upon proper and timely application being made to the State court therefor. Title 28, sec. 71, U. S. C. A. When such application for removal is made in the State court in proper form and substance, and accompanied by the required bond, the State court is required to remove said case, if, upon hearing the application for removal, the record discloses a right to remove. The State court may act on the law, but not on the facts. If any ground stated in the petition for removal is well taken, it is error for the State court to proceed with the cause. The right to removal depends on the case disclosed by the proceedings when the petition therefor is filed. See Simkins on Federal Procedure, sec. 1035. The district court of the United States will not permit the plaintiff to join formal parties, or fraudulently join with the defendant parties whose citizenship would defeat a diversity of citizenship, and thereby prevent removal. Eemoval cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. If in such a case a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly leading to that conclusion, apart from the pleader’s deductions. The petition must be verified, and its statements must be taken by the State court as true. If a removal is effected, the plaintiff may by a plea or answer take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the Federal Court. See Simkins on Federal Procedure, sec. 1072. In construing the pleadings, this court accepts as true all the allegations of fact contained in the petition for removal, as indeed it must. However, the allegations that Wm. E. Bush was joined by the plaintiff *640 fraudulently and solely in an effort to evade Federal jurisdiction, and that he is in no way responsible for any acts, as an individual for the Georgia-Carolina Brick & Tile ■ Company, are treated as the pleader’s deductions based upon the other allegations of the petition which, do not rightly lead to that conclusion.

The petition of the plaintiff, also assumed to be true (see Phillips v. International Agricultural Corp., 54 Ga. App. 755-758, supra), sets out a cause of action against both defendants, properly joined, and is not separable. The- fact that the individual resident defendant is an officer of the corporation does not exclude him from personal liability. See Code, § 105-1207; Belt v. Western Union Telegraph Co., 63 Ga. App. 469 (11 S. E. 2d, 509); Graham, v. Dahlonega Gold Mining Co., 71 Ga. 296; Postal Telegraph-Cable Co. v. Puckett, 24 Ga. App. 458 (101 S. E. 397).

We conclude, therefore, that the judgment of the trial court denying the application for removal is without error.

Judgment affk'med.

MacIntyre, P. J., and Gardner, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

44 S.E.2d 63, 75 Ga. App. 637, 1947 Ga. App. LEXIS 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-carolina-brick-tile-co-v-merry-bros-brick-tile-co-gactapp-1947.

Opinion

Related

Cite This Page — Counsel Stack