Georgia-Carolina Brick & Tile Co. v. Merry Bros. Brick & Tile Co. , 75 Ga. App. 637 ( 1947 )

1. Where two defendants are properly joined in an action brought in a State court, one being a resident, the other a nonresident, and the action not being a separable controversy, the nonresident defendant is not entitled to remove the cause to the United States District Court. See Phillips v. International Agricultural Corp., 54 Ga. App. 751 (189 S.E. 54), and cases cited.

2. A petition, brought in a State court having jurisdiction, against two defendants, one a resident and the other a nonresident, alleging that the plaintiff and others have a vested right in the use of a certain road over private lands; that the defendants have recently undertaken to prevent the plaintiff and others from using said road, by obstruction, by armed guard, and by destruction, that the plaintiff has managed to continue to use the same, that the defendants continue to threaten and deprive the plaintiff of said use, that the same is likely to result in a multiplicity of lawsuits, is resulting in great inconvenience and irreparable damage to the plaintiff, and praying for a declaratory judgment and temporary restraining order, is a proper joinder of defendants, and states a cause of action that is not separable.

3. That one of the defendants is a nonresident corporation claiming the title to the land where the road in controversy is located, the other a resident individual and an officer of the said corporation disclaiming any interest in the subject-matter of the litigation, his acts as alleged being in his capacity as an officer of said corporation, fails to change the foregoing rule as stated.

DECIDED SEPTEMBER 10, 1947. On February 5, 1947, Merry Brothers Brick Tile Company, a corporation under the laws of Georgia, hereinafter referred to as the plaintiff, filed a petition in the Superior Court of Richmond County against Georgia-Carolina Brick Tile Company a corporation organized and existing under the laws of Maryland with an office and place of business in Richmond County, Georgia, and Wm. E. Bush, a resident of Richmond County, Georgia, hereinafter referred to as the defendants, a petition alleging in substance: that the defendant corporation owns a certain tract of land in Richmond County; that the plaintiff corporation likewise owns a certain tract of land situated near the tract owned by the defendant corporation; that there is a road located on the tract owned by the defendant corporation, the use of which has been properly reserved for the benefit of the plaintiff and others; that the defendants have recently undertaken to prevent the plaintiff and others from using said road in various ways alleged in the petition, including obstruction, armed guard, criminal prosecution, and destruction; that notwithstanding these efforts, the plaintiff has continued to use said road; that the defendants continue to threaten to prevent the plaintiff and others from continuing to enjoy the use thereof; that said conduct will result in great inconvenience and irreparable damage to the plaintiff; that the threatened actions of the defendants are likely to cause a multiplicity of lawsuits; said petition praying for a declaratory judgment adjudicating the rights and legal relations of the plaintiff and the defendants with respect to said road; also for a temporary restraining order preventing the defendants and tenants, employees and agents, from blocking, obstructing, plowing or otherwise interfering with the plaintiff's use of said road pending the litigation.

Two days later the defendants presented to the Superior Court of Richmond County their petition for removal of said cause from the said superior court to the District Court of the United States in and for the Southern District of Georgia, Augusta Division, which includes Richmond County, Georgia, alleging the presentation thereof before the expiration of the time to plead, answer, or demur under the laws of Georgia and the rules of the court applicable thereto; that said petition is in equity and a suit of a civil nature of which the district courts of the United States have original jurisdiction; that the matter in controversy exceeds the sum of $3000 exclusive of interest and costs; that Georgia-Carolina Brick Tile Company is a nonresident, and that Wm. E. Bush is a resident of Richmond County, Georgia; that the latter has no interest as an individual in the subject-matter of the suit; that the plaintiff has fraudulently joined him in said suit as a defendant solely in an effort to evade Federal jurisdiction; that Wm. E. Bush is in no way responsible for any acts as an individual for Georgia-Carolina Brick Tile Company; that he is an officer of said corporation and whatever direction or acts he may have undertaken in reference to the land owned by Georgia-Carolina Brick Tile Company have been in his capacity as an officer of said corporation. Accompanying the petition for removal was the required bond for costs. After hearing said cause on the petition for removal, held on February 20, 1947, the court entered a judgment denying the prayers of the petition for removal, and on this judgment the defendants assign error. The district courts of the United States shall have original jurisdiction of all suits of a civil nature at common law or in equity, where the matter in controversy exceeds, exclusive of interest and costs, the sum of $3000, and is between citizens of different states. See Title 28, sec. 41 (1), U.S.C.A. When such suits are brought in State courts, they may be removed to the United States district court having jurisdiction thereof, upon proper and timely application being made to the State court therefor. Title 28, sec. 71, U.S.C.A. When such application for removal is made in the State court in proper form and substance, and accompanied by the required bond, the State court is required to remove said case, if, upon hearing the application for removal, the record discloses a right to remove. The State court may act on the law, but not on the facts. If any ground stated in the petition for removal is well taken, it is error for the State court to proceed with the cause. The right to removal depends on the case disclosed by the proceedings when the petition therefor is filed. See Simkins on Federal Procedure, sec. 1035. The district court of the United States will not permit the plaintiff to join formal parties, or fraudulently join with the defendant parties whose citizenship would defeat a diversity of citizenship, and thereby prevent removal. Removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy. If in such a case a resident defendant is joined, the joinder, although fair upon its face, may be shown by a petition for removal to be only a sham or fraudulent device to prevent a removal; but the showing must consist of a statement of facts rightly leading to that conclusion, apart from the pleader's deductions. The petition must be verified, and its statements must be taken by the State court as true. If a removal is effected, the plaintiff may by a plea or answer take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the Federal Court. See Simkins on Federal Procedure, sec. 1072. In construing the pleadings, this court accepts as true all the allegations of fact contained in the petition for removal, as indeed it must. However, the allegations that Wm. E. Bush was joined by the plaintiff fraudulently and solely in an effort to evade Federal jurisdiction, and that he is in no way responsible for any acts as an individual for the Georgia-Carolina Brick Tile Company, are treated as the pleader's deductions based upon the other allegations of the petition which do not rightly lead to that conclusion.

The petition of the plaintiff, also assumed to be true (seePhillips v. International Agricultural Corp.,54 Ga. App. 755-758, supra), sets out a cause of action against both defendants, properly joined, and is not separable. The fact that the individual resident defendant is an officer of the corporation does not exclude him from personal liability. See Code, § 105-1207; Belt v. Western Union Telegraph Co.,63 Ga. App. 469 (11 S.E.2d 509); Graham v. Dahlonega GoldMining Co., 71 Ga. 296; Postal Telegraph-Cable Co. v.Puckett, 24 Ga. App. 458 (101 S.E. 397).

We conclude, therefore, that the judgment of the trial court denying the application for removal is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.