Pruitt v. Charlotte Power Co.
| Decision Date | 29 April 1914 |
| Docket Number | 487. |
| Citation | 81 S.E. 624,165 N.C. 416 |
| Parties | PRUITT v. CHARLOTTE POWER CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Harding, Judge.
Action by Myrtle L. Pruitt, as administratrix, etc., against the Charlotte Power Company and others. From an order denying a motion to remove the cause to the federal court, defendant Power Company appeals. Affirmed.
The rule that filing of a petition for removal and bond terminates the trial court's jurisdiction applies only when the allegations of fact show a right to remove, and not when the petition alleging fraudulent joinder merely asserts fraud in general terms.
A state court should not surrender its jurisdiction on the filing of a petition and bond to remove a cause to a federal court unless the petition on its face shows a removable cause, and the petition and bond are filed in the state court within the proper time.
Osborne Cocke & Robinson, of Charlotte, for appellant.
J Laurence Jones, Stewart & McRae, and Shannonhouse & Jones all of Charlotte, for appellees.
This is an appeal from the refusal of a motion to remove the cause to the United States District Court. The summons was served August 7, 1912, returnable to September term of the superior court of Mecklenburg. Complaint was filed on September 25, 1913. On October 11th the defendant asked for time to file answer until the last day of the next term of the court, and by consent of the plaintiff the order was made accordingly, and thereafter, on the same day, the defendant's counsel presented to the court the petition and bond for the removal of the cause.
The entering into the stipulation for an extension of time to file the answer, which was duly approved by the judge, was a general appearance in the state court and waived the right to remove. It was an acceptance of the jurisdiction of the state court. Howard v. Railroad, 122 N.C. 944, 29 S.E. 778; Duffy v. Railroad, 144 N.C. 26, 56 S.E. 557. The provision in the agreement that the stipulation should be made an order of court does not affect the matter, especially as the judge finds that the order was signed before the petition and bond for removal were presented to the court. Though there is some authority that, where an order of court is made extending the time to answer, the time therein specified will be considered the day when the answer is due, yet the greater weight of authority is: "A petition for removal, filed after the statutory time has expired, comes too late, even though filed within the time allowed for answering by order of the court, where such order is based on the stipulation of the parties." Bank v. Keator (C. C.) 52 F. 897; Austin v. Gagan (C. C.) 39 F. 626, 5 L. R. A. 476; Velie v. Indemnity Co. (C. C.) 40 F. 545; Martin v. Carter (C. C.) 48 F. 596; Mining Co. v. Hunter (C. C.) 60 F. 305; Schippior v. Cordage Co. (C. C.) 72 F. 803; Heller v. Lumber Co. (C. C.) 178 F. 111; Wayt v. Standard Co. (C. C.) 189 F. 231.
Besides, the petition to remove does not sufficiently allege a fraudulent joinder. Where resident defendants are joined with a nonresident, and the latter applies for removal for fraudulent joinder, the question of fraud can be raised only by stating facts from which the fraudulent joinder necessarily appears, and not by a single averment of fraud or by alleging fraud in general, though positive, terms that the residents were joined for the sole purpose of applying for removal, and not with the honest intent of seeking relief against them. Smith v. Quarries Co., 164 N.C. 351, 80 S.E. 388.
The complaint filed by the plaintiff states a joint cause of action against each of the defendants. All three defendants are charged with operating and maintaining (as principal and subsidiary companies) a line of wire which caused the death of the plaintiff's intestate. It is fundamental, as well as elementary, that the allegations set out in the complaint are to be construed by the state court as true, upon the petition for removal. Whether there was a joint liability or not was a question to be determined upon the averment of the plaintiff's statement of his cause of action, and is a question for the state court to decide. Railroad v. Scheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208. The motive of the plaintiff, taken by itself, does not affect the right to remove. Railroad v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473.
In Staton v. Railroad, 144 N.C. 135, 56 S.E. 794, it was held: "Two defendants, participating in the commission of a tort to the injury of the plaintiff, are jointly and severally liable, and, when the plaintiff has proceeded against them in a single action, the cause is not separable, and cannot be removed by a foreign defendant to the federal court, though different answers may be made and different defenses relied upon."
In Hough v. Railroad, 144 N.C. 692, 57 S.E. 469, the court said: "At common law and under Rev. § 469, an action in tort against several defendants is joint or several according to the declarations of the complaint, and the plaintiff's election determines the character of the tort, whether joint or several"--and further says: "The mere allegation in the petition of the foreign defendant that the joinder of the resident with the foreign defendant was a devise of the plaintiff for the fraudulent purpose of defeating the defendant's right of removal is insufficient."
In this case the complaint alleges joint ownership and joint negligence against all these defendants, and, on the face of the complaint, a joint cause of action is alleged against each of the defendants, one of whom is a resident of this state. It is not material that the actual purpose of the plaintiff in joining the resident defendant was to prevent the removal to the federal court. Armonstong v. Railroad (C. C.) 192 F. 608; Railroad v. Dowell, 229 U.S. 109, 33 S.Ct. 684, 57 L.Ed....
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