34 F.2d 449 (W.D.Mo. 1929), 7385, West v. Prudential Ins. Co. of America

Docket Nº:7385.
Citation:34 F.2d 449
Party Name:WEST v. PRUDENTIAL INS. CO. OF AMERICA et al.
Case Date:July 31, 1929
Court:United States District Courts, 8th Circuit, Western District of Missouri
 
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Page 449

34 F.2d 449 (W.D.Mo. 1929)

WEST

v.

PRUDENTIAL INS. CO. OF AMERICA et al.

No. 7385.

United States District Court, W.D. Missouri, Western Division.

July 31, 1929

         Prince, Harris & Beery, of Kansas City, Mo., and Davis & Davis, of Chillicothe, Mo., for plaintiff.

         C. A. Randolph, of Kansas City, Mo., for defendant Shumway.

         Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, Mo., and Kitt & Marshall, of Chillicothe, Mo., for defendant Prudential Ins. Co. of America.

         REEVES, District Judge.

         The above action was removed from a state court upon a warrant or writ of certiorari under section 76, title 28, United States Code (28 USCA § 76). This section provides that:

         'When any civil suit * * * is commenced in any court of a state against any officer * * * acting by authority of any revenue law of the United States, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, * * * the said suit * * * may at any time before the trial or final hearing thereof be removed for trial into the district court,' etc. .

         Defendant W. H. Shumway filed his petition for said writ of certiorari upon the ground that the suit against him was on account of acts done by him while acting by authority of the post office inspectors at Kansas City. Both the petition and affidavits filed in support thereof show that he was regularly assigned by the police department of Kansas City, Mo., to aid the postal officials with respect to the use of the mails. It further appeared from the affidavits that it was while engaged in the performance of these duties on behalf of the postal authorities that he did certain acts which formed the basis of plaintiff's action.

         In his motion to remand plaintiff asserts that the statements contained in the petition for writ of certiorari are mere conclusions, and not allegations of fact. Many of said allegations are statements of conclusions, but others contain a sufficient statement of facts which, when considered in connection with the affidavits filed, show that the said Shumway was in fact acting for and on behalf of the Post Office Department at the time the acts were done which formed the basis of the complaint.

         The only question for determination is whether the said defendant Shumway was 'acting by authority of any revenue law...

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