Hughes v. Southern Railway Co.

Devin, J. The appeal presents the single question whether the facts set forth in the petition of the corporate defendant are sufficient to entitle it to have the case removed to the United States District Court. The petition for removal is based on the averment that as to the individual resident defendants no cause of action will lie, and that they *732 were joined as parties defendant for the fraudulent purpose of preventing the exercise by the nonresident defendant of its right of removal to the Federal Court. It seems to be well settled that whether there is a separable controversy is to be determined by the complaint, and that whether resident defendants are joined fraudulently for the purpose of preventing removal of the cause to the United States Court is to be determined by the facts alleged in the petition for removal. Morganton v. Hutton, 187 N. C., 736; Culp v. Ins. Co., 202 N. C., 87; Tate v. R. R., 205 N. C., 51; Trust Co. v. R. R., 209 N. C., 304; Powers v. R. R., 169 U. S., 92; Southern Ry. v. Lloyd, 239 U. S., 496; Wilson v. Iron Co., 257 U. S., 92. The petitioner must not only allege fraudulent joinder, but must state facts leading to that conclusion, apart from the pleader’s deduction. Crisp v. Fibre Co., 193 N. C., 77. Here the appellant has set out in detail the facts upon which it bases its plea for removal, showing want of causal connection between the employment of the resident defendants and the negligence alleged in the complaint. “The State Court may pass upon the sufficiency of the bond and petition, but the petitioner’s allegations of fact are deemed to be true, and if the plaintiff wishes to do so be may traverse the jurisdictional facts in the Federal Court on a motion to remand.” Tate v. R. R., supra; Rea v. Mirror Co., 158 N. C., 24; Lloyd v. R. R., 162 N. C., 485; Smith v. Quarries Co., 164 N. C., 338. There was error in denying the motion for removal. Reversed.