Opinion
(Filed 20 February, 1929.)
Removal of Causes — diversity of Citizenship — Separable Controversy.
Where there is only one valid and subsisting cause of action stated in the complaint, a removal of the cause to the Federal Court upon petition of the nonresident defendant is not error when the amount is within the jurisdiction of the Federal courts.
APPEAL by plaintiff from Small, J., at November Term, 1928, of BEAUFORT.
MacLean Rodman for plaintiff.
Ward Grimes, Thomas Creekmore and Pou Pou for defendants.
Motion to remove suit to the District Court of the United States for the Eastern District of North Carolina for trial. Motion allowed as to cause of action on contract, insurance policy, from which plaintiff appeals, assigning error.
A critical analysis of the complaint leaves us with the impression that only one valid, subsisting cause of action (based on the policy of insurance) had been stated therein. The other matters alleged, even if properly joined in an action on the contract of insurance, which may be doubted if intended to set up a separate and independent action in tort, apparently have resulted in no jury to the plaintiff as alleged, and may not. And with respect to plaintiff's gun, it is not alleged that any demand has been made for its return.
We find no error in the removal of the suit to the Federal Court for trial on the ground of diversity of citizenship.
Affirmed.