Cogdill v. . Clayton

AuleN, J. Tbe questions of tbe right to tbe removal of actions from tbe State to tbe Federal courts, and of tbe procedure on motions made for this purpose, have been very fully considered in several recent decisions of this Court, and tbe rules deducible from these authorities and from tbe decisions of tbe Supreme Court of tbe United States are: 1. That tbe petition for removal must state tbe facts upon wbicb tbe motion is based, and not mere conclusions. 2. That tbe petition is insufficient if it does no more than deny tbe cause of action alleged in tbe complaint. 3. That tbe State court has jurisdiction for tbe purpose of determining if tbe facts alleged present a removable cause. *528 4. That the State courts cannot inquire into and decide as to the truthfulness of the facts alleged in the petition. 5. That if the facts alleged in the petition are sufficient to justify a removal, it is the duty of the courts of the State to make the order for the removal, and that it is for the Federal court to inquire into and determine the truth of the facts alleged upon a motion by the plaintiff in the Federal court to remand to the State court. Herrick v. R. R., 158 N. C., 307; Rea v. Mirror Co., 158 N. C., 28; Hyder v. R. R., 167 N. C., 588; R. R. v. Cockrill, 232 U. S., 146. In R. R. v. Cockrill, supra, an action was commenced in the State courts of Kentucky against the railroad, a Virginia corporation, and against the engineer and fireman, who were citizens of Kentucky, to recover damages for wrongful death. The defendant railroad company filed its petition for removal upon the ground of diverse citizenship, alleging a fraudulent joinder of the engineer and fireman; but this allegation consisted only in charging fraud in general terms and in a denial of negligence. The State courts denied the action to remove, and proceeded with the trial, and from the final judgment in the Supreme Court of Kentucky the defendant sued out a writ of error to the Supreme Court of the United States. The judgment of the State courts was affirmed, and the Court said of the rule governing removals: “The right of removal from a State to a Federal court, as is well understood, exists only in certain enumerated classes of cases. To the exercise of this right, therefore, it is essential that the case be shown to be within one of those classes, and this must be done by a verified petition, setting forth, agreeably to the ordinary rules of pleading, the particular facts, not already appearing, out of which the right arises. It is not enough to allege in terms that the case is removable, or belongs to one of the enumerated classes, or otherwise to rest a right upon mere legal conclusions. As in _ other pleadings, there must be a statement of the facts relied upon, and not otherwise appearing, in order that the court may draw the proper conclusion from all the facts, and that, in the event of the removal, the opposing party may take issue, by a motion to remand, with what is alleged in the petition. ... A civil case, at law or in equity, presenting a controversy between citizens of. different States, and involving the requisite jurisdictional amount, is one which may be removed by the defendant, if not a resident of the State in which the case is brought; and this right of removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. . . . Merely to traverse the allegations upon which the liability of a resident defendant is rested, or 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. . . . It is thoroughly settled that *529 issues of fact arising upon a petition for removal are to be determined in tbe Federal court, and that tbe State court, for tbe purpose of determining for itself whether it will surrender jurisdiction, must accept as true tbe allegations of fact in such petition.” Applying these principles, and considering tbe petition in connection with tbe complaint, we would have no hesitation in affirming tbe order of removal if tbe petition rested alone on tbe fraudulent joinder of tbe defendants, as tbe facts constituting tbe fraud are specifically alleged; but if tbe other defendants were stricken from tbe record we would have a cause of action for $3,000 stated against tbe defendant corporation arising in 1912, after tbe enactment of tbe Judiciary Act of 1911 increasing tbe jurisdictional amount to $3,000, and no facts are stated in tbe petition tending to sustain tbe charge that tbe allegation in tbe complaint as to tbe time when tbe cause of action accrued is fraudulent; and upon tbis ground tbe order is Reversed.