Frizzell v. Southern Mica Co.

This action was heard upon plaintiff's appeal from the order of the clerk of the Superior Court of Jackson County, that the action be removed from said Superior Court to the District Court of the United States for the Western District of North Carolina, for trial, in accordance with the prayer in the petition of the defendant, Southern Mica Company.

From order overruling the order of the clerk, and denying the prayer of its petition, the defendant, Southern Mica Company, appealed to the Supreme Court. It is alleged in the complaint, and not controverted in the petition for removal that the defendant, Albert Raby, a resident of this State, at the date of plaintiff's injury, was employed by his codefendant, a nonresident corporation, as a foreman in its mine in Macon County, North Carolina. Plaintiff alleges that his injuries were caused by the joint tort of the defendant. The allegations of the complaint upon which the cause of action is founded are controverted in the petition for removal. This is not sufficient to sustain the contention that the joinder of the resident defendant with the nonresident was fraudulent. Hurt v. Mfg. Co., ante, 1.

The order denying the prayer for the removal of the action from the State Court to the Federal Court is affirmed upon the authority of Feasterv. McLelland Stores Company, ante, 31; Givens v. Manufacturing Company,196 N.C. 377, 145 S.E. 681; Swain v. Cooperage Co., 189 N.C. 528,127 S.E. 538.

Affirmed.