#### C. E. WRIGHT v. BEMIS LUMBER COMPANY and L. W. WILSON.

(Filed 27 June, 1931.)

Removal of Causes C 1) — Petition for removal on ground of fraudulent joinder and separable controversy held properly refused in this case.

Where a petition and bond are filed by a nonresident defendant to remove a cause from the State to the Federal Court on the ground of alleged fraudulent joinder of the resident defendant to defeat the jurisdiction of the Federal Court, the allegations of the complaint of a breach of duty by each of the defendants to the plaintiff proximately causing the injury is sufficient to retain the cause in the State court.

Appeal by defendant, Bemis Lumber Company, from Moore, J., at February Term, 1931, of Haywood.

Affirmed.

Jones & Ward for plaintiff.

R. L. Phillips for defendant, Bemis Lumber Company.

*185ClaeKSON, J.

This is an action brought by plaintiff against defendants to recover damages. Giving the complaint a liberal construction, it is an action for actionable negligence against both defendants as joint tort-feasors. It alleges a duty owed by both defendants to plaintiff, the nonperformance of which duty it is alleged was the proximate cause of injury to plaintiff. The Bemis Lumber Company, a nonresident corporation defendant, duly filed its petition and bond for removal of the action to the District Court of the United States for the Western District of North Carolina, for trial, on the ground of fraudulent joinder of L. W.. Wilson, a resident defendant. The court below made an order refusing the petition of Bemis Lumber Company for removal. Crisp v. Fibre Co., 193 N. C., 77 Hurt v. Mfg. Co., 198 N. C., 1; Tron v. Refining Co., 199 N. C., 816. From the record, serious questions may arise on the trial, which we do not now consider. The case is not before us on demurrer. We pass alone on the petition of the Bemis Lumber Company for removal to the Federal Court, as that is the only question presented. Huntley v. Express Co., 191 N. C., 696. The judgment below is

Affirmed. •