Walters v. Phœnix Utility Co., 196 N.C. 817 (1928)

Dec. 19, 1928 · Supreme Court of North Carolina

196 N.C. 817

G. W. WALTERS v. PHŒNIX UTILITY COMPANY et al.

(Filed 19 December, 1928.)

Appeal by defendants, Phoenix Utility Company and H. L. Lincoln, from order of Harwood, Special Judge, at September Term, 1928, of Haywood.

Affirmed.

The above-entitled cause was heard upon defendants’ appeal from an order of the clerk, denying defendants’ motion for the removal of the action from the Superior Court of Haywood County to the United States District Court for the "Western District of North Carolina, for trial.

Tbe petition upon which the motion was made was duly filed in accord-anee with statutory provisions. The' grounds stated therein for the removal are (1) separability of the cause of action alleged in the complaint; (2) fraudulent joinder of resident defendant, for the purpose of preventing, prima facie, the order of removal.

From the order of the judge affirming the order of the clerk, and denying their motion, defendants appealed to the Supreme Court.

Morgan & Ward and M. G. Stamey for plaintiff.

Harkins & Van Winkle for defendants.

Per Curiam.

The order of the judge affirming the order of the clerk, and denying the motion of the nonresident defendants for the removal of this action from the State Court to the Federal Court for trial, upon the grounds stated in the petition, is affirmed upon the authority of Givens v. Mfg. Co., ante, 377; Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238; Fenner v. Cedar Works, 191 N. C., 207, 131 S. E., 625. The principles controlling the decision of the question presented by this appeal are well settled in the above-cited cases. It is unnecessary to cite other cases in this or other jurisdictions; nor is it deemed necessary to restate these principles. There is no error, and the order is

Affirmed.