Hercules Powder Co. v. Sistrunk
| Decision Date | 13 December 1926 |
| Docket Number | 26014 |
| Citation | 110 So. 674,145 Miss. 299 |
| Court | Mississippi Supreme Court |
| Parties | HERCULES POWDER CO. v. SISTRUNK. [*] |
. (Division A.)
1. REMOVAL OF CAUSES. Right of removal is not defeated by fraudulent joinder of resident defendant for such purposes.
Wrongful and fraudulent joinder of a resident defendant for purpose of defeating right of removal does not defeat or affect such right.
2. REMOVAL OF CAUSES. State court must accept as true facts alleged in petition for removal.
Allegations of fact in properly verified petition for removal must be accepted as true by state court.
3. REMOVAL OF CAUSES. Issue taken on allegations in petition for removal is triable only in Federal court.
If allegations of fact in petition for removal be controverted they are triable only in court to which removal is sought.
APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.
Action by Walter Sistrunk against the Hercules Powder Company and another. Removal of cause denied, and judgment for plaintiff against the named defendant, which appeals. Reversed and remanded.
Judgment reversed, and cause remanded.
Hannah & Simrall and, T. J. Wills, for appellant.
Anderson & Anderson and John R. Tally, for appellee.
Reporter's Note: See briefs in companion case of Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862.
Argued orally by T. C. Hannah, for appellant, and John R. Tally, for appellee.
The appellee, Walter Sistrunk, instituted this suit in the circuit court of Forrest county against the appellant, Hercules Powder Company, a Delaware corporation, and B. L. Patrick, a resident citizen of Forrest county, Miss., for damages for personal injuries suffered by appellee through the alleged negligence of the appellant and the said Patrick. The suit was for ten thousand dollars, and there was a judgment in the court below in favor of the defendant Patrick, from which there is no appeal. The plaintiff recovered a judgment for one thousand eight hundred dollars against the defendant Hercules Powder Company, and from this judgment this appeal was prosecuted.
On the return day of the cause, the appellant filed a petition and bond to remove the cause to the federal court. The petition and bond were regular in form, and the petition was properly verified. The petition alleged that, at the time of the commencement of the suit, and at the time of the filing of the petition, the appellee was a citizen and resident of the state of Mississippi; that the appellant was, at the time of the commencement of suit and the filing of the petition, a citizen of, and a corporation existing under and by virtue of the laws of, the state of Delaware, a resident of said state, and a nonresident of the state of Mississippi, and that the defendant B. L. Patrick was at said times a resident and citizen of the state of Mississippi.
This petition further alleges that the defendant B. L. Patrick was made a party defendant to said suit solely and only because he was a citizen and resident of the state of Mississippi, and for the sole and only purpose of thereby wrongfully and unlawfully attempting to confer jurisdiction on the state court to hear and determine the cause, and for the sole and only purpose of thereby wrongfully and unlawfully preventing, or attempting to prevent, the petitioner from removing the cause from the state court to the federal district court. The petition further averred that the plaintiff had no cause of action whatever against the said B. L. Patrick; that all the allegations of the plaintiff's declaration which show, or tend to show, that the plaintiff has any cause or grounds of action against the said B. L. Patrick are untrue, and that the plaintiff knew, at the time of the commencement of the suit, and still knew, that the same were untrue, and that all of the said untrue allegations of the plaintiff's said declaration, which show, or tend to show, that he has any cause or grounds of action against the said B. L. Patrick, were intentionally made by him, the said plaintiff, for the sole purpose of wrongfully and unlawfully making the said B. L. Patrick a defendant in and to the suits for the sole purpose of thereby wrongfully and unlawfully attempting to prevent the petitioner from removing the cause from the state court to the United States district court. With this petition for the removal of the cause, there was filed the affidavit of B. L. Patrick averring that all the allegations of the plaintiff's declaration which show, or tend to show, that the affiant was, or had been, guilty of any act or acts of negligence of any kind toward the said plaintiff are untrue, and that the said plaintiff knew, at the time of the commencement of the suit, and still knows, that all of the said allegations of his declaration were untrue.
The plaintiff then filed a sworn answer to this petition for removal,...
To continue reading
Request your trial
-
Mississippi Power & Light Co. v. Pitts
......Chesapeake & O. R. Co., 169 U.S. 100, 42 L.Ed. 676; Hercules Powder. Co. v. Sistrunk, 145 Miss. 299, 110 So. 674; Bankers. Securities Corp. v. Insurance Eq. ......
- Mississippi Power & Light Co. v. Ross
-
Gulf Refining Co. v. Moody
...... had been denied. . . Hercules. Powder Co. v. Sistrunk, 145 Miss. 299, 110 So. 674;. Hercules Powder Co. v. Nix, 144 Miss. 113, ......
-
Sears, Roebuck & Co. v. Van Dolah
...... District of Mississippi, at Biloxi. . . Hercules. Powder Co. v. Nix, 144 Miss. 113, 109 So. 862;. Hercules Powder Co. v. Sistrunk, 145 Miss. 299, ......