. J.A. Meadows Company, an insolvent corporation which was wound up under receivership proceedings in the court below instituted some time prior to 1931. They became the purchasers at judicial sale of the assets of that corporation, at a price admitted at the bar of this court to be $35,000; and thereafter on June 30, 1931, instituted an action in the superior court of Craven county, on a cause of action alleged to have been so acquired, against the Davison Chemical Company, the Meadows Fertilizer Company, and one C. Wilbur Miller, asking damages in the sum of $1,500,000, which it was alleged that the E.H. J.A. Meadows Company had sustained as the result of an unlawful conspiracy on the part of the defendants. A motion to remove this action to the federal court was denied, a demurrer to the complaint was overruled, and the action of the superior court with respect to both these matters was sustained on appeal in an opinion filed by the Supreme Court of North Carolina March 23, 1922. Newberry v. Meadows Fertilizer Co., 202 N.C. 416, 163 S.E. 116. A motion to docket the case in the federal District Court, notwithstanding the denial of the petition for removal, was itself denied by the judge below, and the cause was remanded to the state court. Newberry v. Meadows Fertilizer Co., 1 F. Supp. 665. At the time of instituting the conspiracy action in the state court, the appellants caused warrants of attachment to be issued against the property of the Davison Chemical Company, and writs of garnishment were issued and served upon the Meadows Fertilizer Company and the Eastern Cotton Oil Company, two of its subsidiary corporations which were largely indebted to it.
They argued three appeals in the Supreme Court of North Carolina and one in the 4th Circuit Court of Appeals. See Newberry v. Davison Chemical Co. (C.C.A.) 65 F.2d 724; Newberry v. Meadows Fertilizer Co., 202 N.C. 416, 163 S.E. 116; Id., 206 N.C. 182, 173 S.E. 67. Mr. Royall estimates that he alone spent upwards of 300 days in attention to the case which was given the preferred call on his time in view of its importance. Mr. Moore has not submitted a separate detailed estimate of the time he spent on the case but his testimony stresses the magnitude and importance of the case.
The test of separability lies in the complaint and the cause of action therein stated. If the cause of action, as stated, is not separable the motion must be denied. Lackey v. R. R., 219 N.C. 195; Burleson v. Snipes, 211 N.C. 396, 190 S.E. 220; Rucker v. Snider Bros., Inc., 210 N.C. 777, 188 S.E. 405; Trust Co v. R. R., 209 N.C. 304, 183 S.E. 620; Hood v. Richardson, 208 N.C. 321, 180 S.E. 706; Newberry v. Fertilizer Co., 202 N.C. 416, 163 S.E. 116; Brown v. R. R., 204 N.C. 25, 167 S.E. 409; Fenner v. Cedar Works, 191 N.C. 207, 131 S.E. 625; Timber Co. v. Ins. Co., 190 N.C. 801, 130 S.E. 864. A plaintiff may sue joint tort-feasors in one action and he has the right to have the cause tried as for a joint tort, and in such case no separable controversy exists.
" In an appeal to this Court — see Newberry v. Fertilizer Co., 202 N.C. 416; S. c., 203 N.C. 330, it was held: "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." The clerk of the Superior Court of Craven County issued an execution to the sheriff of Wayne County, North Carolina, after reciting the facts against the Eastern Cotton Oil Company, garnishee: "You are therefore commanded, as often before, to satisfy the said judgment out of the personal property of the said Eastern Cotton Oil Company, garnishee, within your county; or, if sufficient personal property cannot be found, then out of the real property found in your county belonging to said Eastern Cotton Oil Company, garnishee, on the day when the said judgment was docketed in your county, or at any time thereafter, in whose ha
On an appeal by defendants from a judgment in this action at September Term, 1932, of the Superior Court of Craven County, overruling their demurrer to the complaint filed by the plaintiffs, on the grounds stated in said demurrer, the judgment was affirmed. Newberry v. Fertilizer Co., 202 N.C. 416, 163 S.E. 116. It was held by this Court that the 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 to the plaintiffs, which they are entitled to recover of the defendants, jointly and severally. The judgment was affirmed on the authority of Trust Co. v. Peirce, 195 N.C. 717, 143 S.E. 524.