Herbert v. Roxana Petroleum Corporation

• Citation: 12 F.2d 81
• Parties: HERBERT v. ROXANA PETROLEUM CORPORATION.
• Decision Date: 31 December 1926
• Court: U.S. District Court — Eastern District of Illinois

12 F.2d 81 (1926)

HERBERT v. ROXANA PETROLEUM CORPORATION.

District Court, E. D. Illinois.

Neil H. Thompson, of Mt. Vernon, Ill., for plaintiff.

Koerner, Fahey & Young, of St. Louis, Mo., for defendant.

LINDLEY, District Judge.

Plaintiff brought an action of trespass on the case against defendant in the circuit court of Jefferson county, Ill., alleging damages in the sum of $15,000. Defendant within the time required by law gave notice of and filed a petition and bond for removal to this court. The circuit court sustained the objections of the plaintiff thereto and denied the petition. Plaintiff thereupon amended his declaration, by reducing the amount of damages to less than that necessary to confer federal jurisdiction. Defendant thereupon filed in the circuit court its general issue, and in this court a transcript of the entire proceedings. Plaintiff now moves to remand the cause.

The petition averred that plaintiff was at the time of the commencement of the action and still is a resident and citizen of the state of Illinois, and that defendant was at each of the same times and still is a corporation organized under the laws of the state of Virginia and a citizen of said state. This was a sufficient averment of the diversity of citizenship. Shattuck v. N. B. & M. Insurance Co., 58 F. 609, 7 C. C. A. 386; Paul v. Va., 8 Wall. 168, 19 L. Ed. 357; Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 F. 14, 84 C. C. A. 167; Myers et al. v. Murray Nelson & Co. (C. C.) 43 F. 695, 11 L. R. A. 216.

The bond was executed under seal by a surety company, shown to be authorized to transact business in Illinois, through its agent, shown by certified copy of power of attorney to be authorized to execute such bonds on behalf of his principal. The surety's corporate seal was attached. The defendant did not sign the bond, but its attorneys did; there being no proof of their authority so to do. This was sufficient execution of the bond, as under the law the principal is not required to execute the bond. Groton Bridge & Mfg. Co. v. American Bridge Co. (C. C.) 137 F. 284. This case is quite generally approved.

The acknowledgment to the bond was before a purported notary public of St. Louis, Mo., without any proof of his authority to take acknowledgments. This fact is immaterial, as there is no requirement in the Removal Act that the bond be acknowledged. An acknowledgment is only additional proof of execution of cumulative character.

The serious complaint of plaintiff is as to the verification of the petition as to removal, which was sworn to before a purported notary public of Missouri. The record discloses no evidence of his authority to administer oaths. To authorize removal of a cause, the facts on which the right is based must exist, and they must be alleged of record through appropriate pleadings accompanied by the formalities prescribed by law. Miller v. Soule (D. C.) 221 F. 493. Whether the failure to furnish proof of the notary's authority to administer oaths was a fatal defect must be determined by the condition of the record that confronted the learned judge of the state court, for whose learning and judicial capacity this court has profound respect. If a fatal defect then existed, in the absence of any amendment correcting same then prayed for by the defendant and allowed, in view of plaintiff's amendment, there can be no jurisdiction in this court. The parties' rights were then fixed, for the question of right of removal must be determined on the record as at the time of the filing of the petition for removal. Miller v. Soule (D. C.) 221 F. 493; Anderson v. Western Union Telegraph Co. (D. C.) 218 F. 78.

Section 29 of the Judicial Code (Comp. St. § 1011) requires that petitions for removal shall be duly verified. A verification is confirmation of the correctness, truth, or authenticity of the pleading, or other paper, by affidavit, oath, or deposition. To verify is to affirm under oath, or to confirm by formal oath. 40 Cyc. 193. An oath, to be effective, of course, must be administered by some officer authorized by law to administer oaths. The courts of any...