Stubbs v. Chicago Mill & Lumber Corp., 201 N.C. 336 (1931)

Sept. 16, 1931 · Supreme Court of North Carolina

201 N.C. 336

BERTIE STUBBS, Administratrix of ROBERT W. STUBBS, v. CHICAGO MILL AND LUMBER CORPORATION and W. B. EBNER.

(Filed 16 September, 1931.)

Removal of Causes C b — Allegations in petition for removal will be taken as true, plaintiff having right to join issue or move for remand.

Where a nonresident defendant files petition and bond for tbe removal of a cause from the State to the Federal Court upon diversity of citizenship and pending of the same action in the Federal Court, and the amount is jurisdictional in the latter Court, for the purpose of the motion the statement contained in the petition is taken as true, the plaintiff having the right to answer, join issue with the petition or move to remand from the District to the State Court, and the defendant’s petition to remove the cause as prayed, should be allowed.

Appeal by plaintiff from Grady, J. From WASHINGTON.

Affirmed.

W. L. Whitley and Ward & Grimes for plaintiff.

Zeb Vance Norman and MacLean & Rodman for defendants.

Pee Cueiam.

Tbis is an action for personal injury resulting in tbe death of the plaintiff’s intestate. The defendant Ebner is a resident of Washington County, North Carolina, and the Chicago Mill and Lumber Corporation is a corporation created and organized under the laws of the State of Delaware. The amount in controversy exceeds $3,000 exclusive of interest and costs.

The corporate defendant filed a petition for the removal of the cause to the United States District Court for the Eastern District of North Carolina, specifically and fully setting out the grounds of the motion: not only diversity of citizenship and fraudulent joinder of parties, but the pending of substantially the same causé of action in the District Court. Stubbs v. Chicago Mill and Lumber Corporation et al., 199 N. C., 807. The statements contained in the petition must for the purpose of the motion be taken as true, the plaintiff having the right to answer, join issue with the petition or move to remand from the District Court to the State Court. Wilson v. Republic Iron & Steel Co., 257 U. S., 92, 66 L. Ed., 144.

Affirmed.