Thompson v. Pan-am. Petroleum Corp.
| Decision Date | 03 May 1933 |
| Docket Number | No. 22641.,22641. |
| Citation | 169 S.E. 270,46 Ga.App. 791 |
| Parties | THOMPSON. v. PAN-AMERICAN PETROLEUM CORPORATION. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Error from City Court of Carrollton; J. J. Reese, Judge.
Suit by A. W. Thompson against the Pan-American Petroleum Corporation. An order was entered directing the removal of the cause to the federal court, and plaintiff brings error.
Reversed.
Statement of facts by Jenkins, Presiding Judge.
Plaintiff sued Pan-American Petroleum Corporation, a nonresident of Georgia, and C. W. Smith, a resident of the state, in a joint action, alleging that until recently and for some years previously he had been employed by the defendant corporation in the sale and distribution of its products and the handling of its funds, under Smith as sales manager of the corporation for the territory in which plaintiff operated; that during the course of his employment plaintiff was required by his contract of employment to furnish a surety bond; that prior to the severance of plaintiffs relations with the corporation, Smith and the corporation entered into a conspiracy, and, acting concurrently through another agent of the corporation, whose name is unknown to plaintiff, procured such other agent, while acting within the scope of his employment and while acting for said two defendants, to write and mail to the bonding company a letter in which it was falsely and maliciously stated that plaintiff had embezzled a named large amount of funds belonging to the defendant corporation. Following the averments of such conspiracy and joint actions of said two named defendants, plaintiff set forth, by reason of such acts, a joint action for libel, and asked damages for more than $3,000. Thenonresident defendant corporation, after complying with the formal requirements, filed its petition to remove the case to the federal court, upon grounds which are set forth in substance as follows:
(a) That said resident defendant "is fraudulently joined solely to prevent removal."
(b) That plaintiff, through the same attorney, had previously filed his action in the state court against the nonresident defendant corporation alone, and that upon the required notice being given that a petition would be filed to remove that proceeding, dismissed the action, and now brings the same as a joint action against the original nonresident corporation and the individual defendant who is a resident of this state.
(c) That the allegations of the petition as to said resident defendant are false and untrue, and that such was known to be the case by the plaintiff and his attorney when the present suit was instituted.
(d) That Smith, the resident defendant, "was in no way connected or concerned in any alleged transaction set out in plaintiff's petition."
(e) That the defendant Smith "is not a real defendant herein, as the allegations of said petition do not in law set out a cause of action against him."
The trial judge ordered the removal of the cause, and to that judgment the plaintiff excepted.
Boykin & Boykin and Willis Smith, all of Carrollton, for plaintiff In error.
Dorsey & Shfelton and Ralph H. Pharr, all of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. by the proper appellate court of the state. Carswell v. Schley, 59 Ga. 17 (1, 2); Evans v. Sears Roebuck & Co., 44 Ga. App. 216 (1), 160 S. E. 702, and cases there cited.
2. "The state court has no jurisdiction to try an issue of fact made by a petition to remove a case from the state court to the federal court." Lane Bros. Co. v. Rickard, 135 Ga. 650 (2), 70 S. E. 565, Ann. Cas. 1912A, 234; Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S. 146, 154, 34 S. Ct. 278, 58 L. Ed. 544, 548, and cases cited; Southern Ry. Co. v. Hudgins, 107 Ga. 334 (2), 336, 33 S. E. 442.
3. The state court does, however, have jurisdiction to determine questions of law made by the petition to remove, and in so doing to construe, in connection therewith, the pleadings of the plaintiff. Illinois Central K. Co. of State of Illinois v. Sheegog, 215 D. S. 308, 317, 30 S. Ct. 101, 54 L. Ed. 208, 211; Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 113, 33 S. Ct. 684, 57 L. Ed. 1090, 1096; Willys-Overland, Inc., v. Johnson, 40 Ga. App. 700, 702, 703, 151 S. E. 414; Postal Telegraph-Cable Co. v. Puckett, 24 Ga. App. 458 (5, 6), 463, 101 S. E. 397; 28 U. S. Code Ann. pp. 287, 499, and cases cited.
4. One of the limitations placed by Congress on the right of a nonresident defendant to remove a cause pending in a state court to a federal court is that such removal cannot be had if there is more than one defendant and one or more residents of the state, unless the cause involves "a controversy which is wholly between citizens of different States, and which can be fully determined as between them." U. S. Judicial Code, § 28 (28 USCA § 71). ' '
5. If an action in a state court, joining a resident with a nonresident defendant, is merely fictitious as to its joint nature, such an attempt to confer exclusive jurisdiction on the state court constitutes a fraud upon the jurisdiction of the federal court and upon the nonresident defendant.
6. (a) For a pleader in a petition for removal "to apply the epithet fraudulent' to the joinder, will not suffice; the showing must be such as compels the conclusion that the joinder is without right and made in bad faith." This must appear from allegations of fact In the petition, or be invoked by the petition from what appears in the plaintiffs own pleadings. Chesapeake & Ohio R. Co. v....
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