Blackwell's Durham Tobacco Co v. Am. Tobacco Co

• Decision Date: 16 April 1907
• Citation: 144 N.C. 352,57 S.E. 5
• Parties: BLACKWELL'S DURHAM TOBACCO CO. v. AMERICAN TOBACCO CO. et al.
• Court: North Carolina Supreme Court

57 S.E. 5

144 N.C. 352

BLACKWELL'S DURHAM TOBACCO CO.

v.AMERICAN TOBACCO CO. et al.

Supreme Court of North Carolina.

April 16, 1907.

1. Removal of Causes —Join deb of Resident Defendants—Parties—Right of Removal.

Where, in an action against foreign corporations to enjoin their use of plaintiff's corporate name, etc., plaintiff joined certain resident agents and employes of defendant corporations as parties defendant, alleging that they were personally assisting their codefendants in carrying on business in violation of plaintiff's rights, the fact that such individual defendants were not necessary parties did not entitle defendant corporations to remove the case to the federal court.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 42, Removal of Causes, §§ 71, 95, 97.]

2. Same—Petition — Fraud — Necessity for Proof.

An allegation, in a petition by defendant for the removal of a cause to the federal court, that plaintiff joined certain residents of the state as parties defendant for the fraudulent purpose of defeating the jurisdiction of the federal court, will be disregarded, in the absence of proof of the fraud.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 79.]

Appeal from Superior Court, Durham County; Moore, Judge.

Action by Blackwell's Durham Tobacco Company against the American Tobacco Company and others. From an order refusing to order the removal of the cause to the federal court, defendants appeal. Affirmed.

Plaintiff, Blackwell's Durham Tobacco Company, a domestic corporation, sues the defendants, the American Tobacco Company (of New Jersey), the Blackwell's Durham Tobacco Company (of New Jersey), both foreign corporations, and 6. W. Watts, a resident and citizen of Durham, N. C, one of the directors of the American Tobacco Company and a stockholder therein, and C. W. Toms, W. W. Flowers, and D. W. Andrews, residents and citizens of Durham, N. C, "local managers, managing agents and business supervisors of said corporations."

The complaint sets forth:

"(1) That the plaintiff, Blackwell's Durham Tobacco Company, is a corporation duly created, organized, and existing under and by virtue of the laws of the state of North Carolina, with its principal office at Durham, in the county of Durham, state of North Carolina, and was so chartered and organized for the purpose of buying, manufacturing, and selling tobacco in its various forms, including smoking tobacco, at Durham, within the county of Durham, in said state of North Carolina.

"(2) That the defendant the American Tobacco Company is a corporation created, organized, and existing under and by virtue of the laws of the state of New Jersey, and is engaged in the business of buying, manufacturing, and selling tobacco in various forms, including smoking tobacco and cigarettes, at Durham, in the county of Durham, in said state of North Carolina.

"(3) That the defendant Blackwell's Durham Tobacco Company (of New Jersey) is a corporation created, organized, and existing under and by virtue of the laws of the state of New Jersey, as the plaintiff is informed and believes, and the plaintiff alleges that the said Blackwell's Durham Tobacco Company (of New Jersey), is engaged in the manufacture of smoking tobacco under said alleged corporate name at Durham, in the county of Durham, in the state of North Carolina, and in the sale thereof in the manufactured condition under the aforesaid alleged corporate name of 'Blackwell's Durham Tobacco Company.'

"(4) That the defendant Blackwell's Durham Tobacco Company (of New Jersey) is not a copartnership, and is not a corporation of the state of North Carolina, and there is no other existing corporation of this state, except the plaintiff, which has the corporate name of 'Blackwell's Durham Tobacco Company, ' and if said defendant is a legal corporation at all, created and organized under any other state or government, the plaintiff is informed, and is advised by counsel learned in the law, and believes and so alleges, that the defendant Blackwell's Durham Tobacco Company (of New Jersey) has never complied with the corporation laws of the state of North Carolina in that behalf made and provided, nor become domesticated as a North Carolina corporation, and it is not, therefore, authorized, but is expressly forbidden by the laws of the state of North Carolina, to do the business aforesaid, or any other business at Durham, in the county of Durham, or elsewhere in the state of North Carolina, under the aforesaid corporate name of 'Blackwell's Durham Tobacco Company, ' and the said defendant 'Blackwell's Durham Tobacco Company' (of New Jersey) has been, and is now, unlawfully doing the aforesaid business of manufacturing and selling smoking tobacco at Durham, in the county of Durham, in said state of North Carolina, under the identical name of the plaintiff, in violation of the laws of this state, and in violation of the plaintiff's corporate rights in the premises, to the plaintiff's irreparable injury and damage.

"(5) That, as plaintiff is informed and believes, and so alleges, the defendant the American Tobacco Company, under and pursuant to some business arrangement, contractural agreement, combination of business interests, or trust understanding, between it and its codefendant, said Blackwell's Durham Tobacco Company (of New Jersey), the terms of which said business arrangement, contractural agreement, combination of business interests, or trust understanding are unknown to the plaintiff, has been, and still is, aiding and assisting and co-operating with the defendant Blackwell's Durham Tobacco Company (of New Jersey) in the aforesaid unlawful and unauthorized business of manufacturing and selling smoking tobacco at Durham, in the county of Durham, and in the said state of North Carolina, in violation of the laws of this state, and in violation of the plaintiff's corporate rights in the premises, and to plaintiffs irreparable injury and damage.

"(6) That the defendant George W. Watts, for a long time prior to the commencement of this action, was, and still is, one of the directors of the defendant the American Tobacco Company, and also a stockholder therein, and was, before and at the commencement of this action, and still is, a citizen and resident of Durham, in the state of North Carolina, and is, as such director and stockholder, directly connected with and interested in the aforesaid business and business connections between the defendants Blackwell's Durham Tobacco Company (of New Jersey), and the American Tobacco Company, and directly connected with, actively and personally aiding, assisting, and co-operating in the tortious acts of his co-defendants hereinbefore set forth.

"(7) That the defendants C. W. Toms, W. W. Flowers, and D. W. Andrews are natural persons, who, before and at the commencement of this action, were and still are citizens and residents of Durham, in the county of Durham, In said state of North Carolina, and were, before and at the commencement of this action, and still are the local managers, managing agents, and business supervisors, by whatever name and title they may be respectively called, and are parties directly interested In carrying on the aforesaid unlawful business, and are actively and personally aiding and assisting and cooperating with their codefendants in carrying on the aforesaid unlawful business of manufacturing and selling tobacco as aforesaid, at Durham, in said state of North Carolina, under the name of 'Blackwell's Durham Tobacco Company, ' in violation of the corporation laws of the state of North Carolina, and in violation of the plaintiff's aforesaid chartered corporate rights under plaintiff's aforesaid corporate name of 'Blackwell's Durham Tobacco Company.'

"(8) That the defendant C. W. Toms is the agent who has been designated by both of the defendants Blackwell's Durham Tobacco Company (of New Jersey) and the American Tobacco Company, respectively, upon whom legal process may be served, and said C. W. Toms is the general business manager and superintendent of both of said defendant corporations in the carrying on of their joint and several business aforesaid at and in Durham, in the county of Durham, in the state of North Carolina."

The plaintiff prayed the defendants, and each of them, be enjoined from using plaintiff's corporate name, etc., and for general relief. Before the time for filing the answer expired, defendants the American Tobacco Company and the Blackwell's Durham Tobacco Company filed their petition, accompanied with the bond, as required by the statute, for the removal of the cause into the Circuit Court of the United States for the Eastern District of North Carolina, setting out their residence, and further: "That the so-called defendants in this suit other than your peti-tioner, Blackwell's Durham Tobacco Company, including your petitioner the American Tobacco Company itself, are merely nominal defendants; that the said C. W. Toms, W. W. Flowers, and D. W. Andrews sustain only the relations of employes to your petitioner, Blackwell's Durham Tobacco Company; that they are not, as alleged in the complaint, directly interested in the business of said Blackwell's Durham Tobacco Company, your petitioner, conducted in Durham, N. C, or elsewhere; that they are neither officers, directors, nor stockholders in said company, and have no voice in the conduct of its affairs, but are its mere servants, employed by it to render service under the control and immediate directions of its officers and board of directors; that their only interest in or conduct of any business conducted in Durham, N. C. or elsewhere, under the name of 'Blackwell's Durham Tobacco Company, ' is as such employes of your petitioner, Blackwell's Durham Tobacco Company, under the control, management, and directions of its board of directors and officers; that this suit is to try the title as between the plaintiff corporation and your petitioner, ...