Allred v. Trexler Lumber Co., 194 N.C. 547 (1927)

Nov. 16, 1927 · Supreme Court of North Carolina

194 N.C. 547

J. F. ALLRED et ux. v. TREXLER LUMBER COMPANY et al.

(Filed 16 November, 1927.)

1. Removal of Causes — Federal Courts — Parties — Nominal Parties— Courts — Jurisdiction.

Where a nonresident defendant seeks to remove a cause from the State to the Federal Court for diversity of citizenship, the plaintiff’s joinder of purely nominal party will not oust the jurisdiction of the Federal Court, and alone is insufficient to defeat the defendant’s motion to remove the case under the Federal statute.

a. Same — Trusts—Trustees—Actions—Contracts—Damages.

Where resident plaintiffs bring an action for damages ex contractu, and likewise seek to enjoin the sale of lands under a power given by a deed of trust, the joinder of the trustee is of a mere nominal party, and will not prevent the defendant’s motion to remove the cause to the Federal Court for diversity of citizenship.

Appeal by plaintiffs from Lyon, Special Judge, at May Term, 1927, of Mooee.

Motion to remove cause to tbe District Court of tbe United States for tbe Middle District of North Carolina for trial. Motion allowed, and plaintiffs appeal.

U. I. Spence for plaintiffs.

Fuller, Reade & Fuller for defendant, Trexler Lumber Company.

Stacy, C. J.

Tbe plaintiffs, residents of Moore County, North Carolina, sue tbe Trexler Lumber Company, a corporation, citizen and resident of tbe State of Pennsylvania, for damages arising ex contractu, and at tbe same time seek to enjoin tbe foreclosure of a deed of trust given to secure tbe payment of certain promissory notes executed by plaintiffs to tbe corporate defendant.

Victor S. Bryant, a resident of Durham, N. C., was named as trustee in tbe deed of trust, tbe foreclosure of which is sought to be enjoined, and bis executrix, upon whom “all tbe title, rights, powers and duties of such trustee” were cast (C. S., 2578) at bis death, is joined purely as a nominal defendant, and no separate cause of action is alleged or relief demanded as against her. Her interest, therefore, is not sufficient to defeat a removal of tbe cause of action to tbe Federal Court for trial. Morganton v. Hutton, 187 N. C., 736, 122 S. E., 842.

Where it appears that tbe real controversy is between citizens of different States, tbe presence of mere formal parties, such as executors of a deceased trustee, even though citizens of tbe same State with tbe plaintiff, will not defeat or oust tbe jurisdiction of tbe Federal Court. Walden v. Skinner, 101 U. S., 577; Black’s Dillon on Removal of Causes, chapter 8, sec. 85.

This was tbe bolding of tbe trial court, and we find no error in tbe ruling.

Affirmed.

BeogdeN, J., took no part in tbe consideration or decision of this case.