Newberry v. Meadows Fertilizer Co., 202 N.C. 416 (1932)

March 23, 1932 · Supreme Court of North Carolina

202 N.C. 416

A. O. NEWBERRY et al. v. MEADOWS FERTILIZER COMPANY et al.

(Filed 23 March, 1932.)

1. Pleadings D b — Demurrer in this case for misjoinder of parties and causes held properly overruled.

Where the complaint alleges a series of connected transactions constituting one general scheme, participated in by the defendants, resulting in damage to the plaintiff for which he is entitled to recover of the defendants jointly and severally, the defendants’ demurrer for misjoinder of parties and causes is properly overruled.

2. Removal of Causes C b — Allegations of complaint are controlling as to whether cause is joint or separable.

Upon a petition for the removal of a cause from the State to the Federal Court on the ground of separable controversy the allegations of the complaint are controlling, and where the complaint alleges a joint tort committed by the defendants ■ the petition is properly denied.

Appeals by defendants from Sinclair, J., at September Term, 1931, of CbaveN.

Affirmed in both appeals.

This action was beard on tbe demurrer of tbe defendant, Meadows Fertilizer Company, on tbe ground tbat it appears on tbe face of tbe complaint filed by tbe plaintiffs therein (1) tbat there is a defect of parties plaintiff; (2) tbat there is a defect of parties defendant; (3) tbat several causes of action have been improperly united in tbe complaint; and (4) tbat there is a misjoinder of parties and of causes of action. Tbe demurrer was overruled.

Tbe action was further beard on tbe appeal of tbe defendants, Davi-son Chemical Company and C. Wilbur Miller, from tbe order of tbe clerk of tbe Superior Court of Craven County, denying tbe petition of said defendants for tbe removal of tbe action from said Superior Court to tbe District Court of tbe United States for tbe Eastern District of North Carolina, for trial, on tbe ground of diversity of citizenship, and separability of causes of action alleged in tbe complaint against tbe resident defendant, Meadows Fertilizer Company, and tbe nonresident defendants, Davison Chemical Company and C. Wilbur Miller. The order of tbe clerk was affirmed and tbe petition of tbe defendants for tbe removal of tbe action was denied.

From judgment overruling ■ tbe demurrer, and affirming tbe order of tbe clerk, tbe defendants, respectively, appealed to tbe Supreme Court.

F. S, Spruill, E. M. Green, W. B. R. Guión and R. E, Whitehurst for plaintiffs.

L. I. Moore and Kenneth 0. Royall for defendants.

Connor, J.

Tbe judgment overruling tbe demurrer of tbe defendant, Meadows Fertilizer Company, to tbe complaint in this action, is affirmed on tbe authority of Trust Co. v. Peirce, 195 N. C., 717, 143 S. E., 524. Speaking of tbe complaint in tbat case, it is said; “A connected story is told, and a complete picture is painted of a series of transactions, forming one general scheme, and tending to a single end. This saves tbe pleading from tbe challenge of tbe demurrer.” This principle is applicable to tbe allegations of tbe complaint in this action, and for this reason tbe demurrer was properly overruled. Tbe allegations of the complaint are sufficient to show a series of transactions, the result of a general scheme, participated in by the defendants, and resulting in damages which the plaintiffs are entitled to recover of the defendants, jointly and severally.

The judgment affirming the order of the clerk, and denying the petition of the defendants, Davison Chemical Company and C. Wilbur Miller, for the removal of the action from the State to the United States Court, for trial, is affirmed, on the authority of Fenner v. Cedar Works, 191 N. C., 207, 131 S. E., 625. In that case it is said: “It is established law that the complaint is the sole basis for determining the nature of the cause of action against the various defendants and that a joint tort action is not separable.” The cause of action alleged in the complaint in this action against both the resident and nonresident defendants is joint and not separable. For this reason, the petition of the nonresident defendants was properly denied.

As we interpret the allegations of the complaint, the cause of action stated therein is a wrongful and unlawful conspiracy entered into by the defendants, resulting in damages which the plaintiffs are entitled to recover of the defendants. The complaint is not subject to demurrer, as contended by the defendant, Meadows Fertilizer Company, nor is the action, removable, as contended by the defendants, Davison Chemical Company and 0. Wilbur Miller. The judgment is

Affirmed.