Sharpe v. Shell Eastern Petroleum Products Co.

180 S.E. 570, 208 N.C. 339, 1935 N.C. LEXIS 407

• Court: Supreme Court of North Carolina
• Decided: June 26, 1935
• Status: Published

Opinion

CoNNOR, J.

There is error in the order of the judge of the Superior Court of Iredell County in affirming the order of the clerk of said court denying the petition of the nonresident defendant in this action for its removal from the Superior Court of Iredell County to the District Court of the United States for the "Western District of North Carolina.

On the facts alleged in its petition, the nonresident defendant is entitled to the removal of this action in accordance with its petition, for the reason that the facts alleged in the complaint are not sufficient to constitute a cause of action against the resident defendants, or either of them. Brown v. R. R., 204 N. C., 25, 161 S. E., 479; Smith v. Ins. Co., 204 N. C., 770, 169 S. E., 658; Culp v. Ins. Co., 202 N. C., 87, 161 S. E., 717.

In Cox v. Lumber Co., 193 N. C., 28, 136 S. E., 254, it is said: “The right of removal by a nonresident defendant with whom the plaintiff has joined a resident defendant cannot be defeated, if such joinder is fraudulent, in that the resident defendant has no real connection with the controversy, but was joined as a defendant with the purpose of preventing a removal from the State to the Federal Court. If in such case a resident defendant is joined, the joinder, although fair upon its face, may be shown to be only a sham or fraudulent device to prevent a removal; but the showing must be made by a statement in the petition for removal of facts rightly leading to the conclusion aj>art from the pleader’s deductions. Swain v. Cooperage Co., 189 N. C., 528, 127 S. E., 538.”

The order in this action is

Reversed.