Kerley v. Standard Oil Co.

Sea well, J. The Federal Courts have final authority in matters of removal under 28 U. S. O. A., sec. II; U. S. Constitution, Article III, sec. 2; Road Improvement District v. St. Louis S. W. R. Co., 257 U. S., 547, 66 L. Ed., 364; N. C. Public Service Co. v. Southern Power Co., 282 F., 837, 33 A. L. R., 626. When a petition for removal is filed in the State Court and denied, the movant may pursue either of two courses : He may file his record in the" Federal Court, subject to the plaintiff’s right to make a motion to remand; Judicial Code, see. 28 (28 U. S. C. A., sec. 71); Metropolitan Casualty Ins. Co. v. Stevens, 312 U. S., 563, 85 L. Ed., 1044; or he may appeal to this Court from the adverse ruling, and if again unsuccessful, prosecute his appeal to the highest Federal Court, where, if there should be found error in the State Court, the proceedings taken in that Court meanwhile are of no effect. Metro *467 politan Casualty Ins. Co. v. Stevens, supra. Tbe defendant chose to appeal from the ruling of the State Court. In deference to the final authority which resides in the Federal Court, it is not the practice of the State Court to pass upon and determine issues of fact bearing upon the removal, when the joinder is challenged as fraudulent. The Court will only examine the record to see if the facts upon which the State jurisdiction is challenged are sufficient to justify removal, taking the allegations of the petition to be true. “When the motion to remove is made on the ground of an alleged fraudulent joinder, the petitioner is entitled to have the State Court decide the question on the face of the record, taking, for this purpose, the allegations of the petition to be true.” Crisp v. Fibre Co., 193 N. C., 78, 85, 136 S. E., 238; Edwards v. R. R., 212 N. C., 61, 65, and cases cited, 192 S. E., 855; Clevenger v. Grover, 211 N. C., 240, 243, 189 S. E., 782; Cox v. Lumber Co., 193 N. C., 28, 31, 136 S. E., 254; Johnson v. Lumber Co., 189 N. C., 81, 83, 126 S. E., 165; Cogdill v. Clayton, 170 N. C., 526, 87 S. E., 338; Stevens v. Lumber Co., 186 N. C., 749, 752, 120 S. E., 329; Crawford v. Sears, Roebuck & Co., 216 N. C., 789, 4 S. E. (2d), 334; Wilson v. Republic Iron & S. Co., 257 U. S., 92, 97, 66 L. Ed., 144, 148. It has been stated that the petition is insufficient if it merely denies the allegations of the complaint; Chicago-Rock Island Ry. v. Whiteaker, 239 U. S., 421, 60 L. Ed., 360; and there has been some divergence of views as to the significance of this rule. But an examination of all the authorities leads to the conclusion that such observations are merely directed to the substance and sufficiency of .the petition with respect to its particularity in setting forth the facts. Fenner v. Cedar Works, 191 N. C., 207, 131 S. E., 625. The movant who has challenged the jurisdiction because of fraudulent joinder of parties has the duty, at least, of positively stating the facts in support of his petition. Fenner v. Cedar Works, supra; Crisp v. Fibre Co., supra; Cogdill v. Clayton, supra. When removal is made to the Federal Court upon petition of the defendant alleging fraudulent joinder, then, at the option of the plaintiff, a motion to remand may be made, and upon such motion, the Federal Court will hear and determine the issues of fact relating to the removal upon the allegation of fraudulent joinder, and make its decision accordingly. Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S., 146, 58 L. Ed., 544; Wilson v. Republic Iron & S. Co., supra. A useless and unseemly conflict between the courts with respect to the jurisdiction is thus avoided. Should the cause be remanded, the jurisdiction of the State Court is restored. *468 Tbe matters considered bere are more fully discussed, with copious citations of authority, in Crisp v. Fibre Co., supra, and tbe rules and principles there announced are controlling bere. Tbe facts stated in tbe petition are sufficient to justify removal. There was error in denying tbe defendant’s petition, and tbe judgment is Reversed.