Brady v. J.B. McCrary Co.
| Decision Date | 15 August 1917 |
| Citation | 244 F. 602 |
| Parties | BRADY v. J. B. McCRARY CO. |
| Court | U.S. District Court — Southern District of Florida |
E. M Semple, of Miami, Fla., for plaintiff.
Shutts Smith & Bowen, of Miami, Fla., for defendant.
On March 23, 1917, the plaintiff commenced his suit against the defendant in the circuit court for Dade county, Fla., and on April 2, 1917, filed his declaration, claiming $50,000 damages. On the same day the defendant entered its appearance. On April 30, 1917, and before the time to plead the defendant filed with the clerk of said court its petition for removal, on the ground of diverse citizenship, in which it alleged that the suit was one of a civil nature at common law, of which the District Court had original jurisdiction. It then proceeds to set out the substances of the declaration, the first two counts showing the making of contracts between the defendant and one Collins, of Dade county, Fla.; the accounts due thereunder having been transferred to plaintiff by written assignment. Four common counts follow for goods bargained and sold, work done and materials furnished, money had and received, and account stated. The allegation of jurisdictional amount is made. The petition then contains this averment, 'Petitioner says on information and belief' that plaintiff at the time of the commencement, since that time, and is now a citizen and resident of Florida, and the defendant a citizen of, and with its principal place of business in, Georgia. With said petition, and at the same time, the defendant lodged with the clerk its bond with the Fidelity & Deposit Company, of Maryland as surety in the sum of $500, conditioned as required by the statute, together with an order for the signature of the judge of said court removing said cause to this court.
On April 28, 1917, notice that such petition and bond for removal would be filed on April 30th was given to and accepted by the attorney for the plaintiff. Owing to the absence of the judge, the order for removal and bond was not presented by the clerk to the judge until May 4th; the rule day in May being the 7th. The judge withheld his signature from the order and approval of said bond until he should be further advised. The bond was approved on May 19th. The order of removal seems never to have been made.
On May 28th the defendant filed the record in this court, and on June 4th the plaintiff moved to remand the case to the state court, on twelve grounds. The first four grounds are directed to the bond, its sufficiency and approval. The fifth and sixth attack the removal on the grounds that the petition and bond were not accepted or presented to the judge; the seventh on the ground the case was not set for hearing and notice given to plaintiff's attorney; the eighth that the bond is not sufficient, and the ninth, tenth, eleventh, and twelfth that diversity of citizenship of plaintiff's assignor is not shown.
After argument on the motion to remand, and before any ruling thereon could be made, the defendant filed its motion for leave to amend its petition by showing the citizenship of Collins, the assignor of plaintiff; this last-mentioned motion being filed June 19th.
On May 7th the plaintiff applied for and had entered in the clerk's office of the state court a default judgment against the defendant, for want of a plea or demurrer.
Section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087) limits the jurisdiction of District Courts on choses in action to such cases as might be brought by the assignor. Section 28 of said Code limits cases to be removed to those of which the District Court are given original jurisdiction, and section 29 directs the method of procedure in removals, and requires the party to make and file a petition, duly verified, in the state court at any time before he is required to plead by the state law for the removal of said cause, and shall make and file therewith a bond with good and sufficient surety that he will within 30 days file a certified copy of the record and pay all costs that may be awarded by the District Court, if it shall be held that the suit was wrongfully or improperly removed. The section then requires that written notice of such petition and bond for removal shall be given the adverse party prior to filing same.
It seems to me that the first question to be determined is whether the amendment asked can...
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... ... Conservation Co., 29 Ga.App. 80(4), 114 S.E. 62; Cooke v ... Seligman, C.C., 7 F. 263; Brady v. J. B. McCrary ... Co., D.C., 244 F. 602; Mutual Life Insurance Co. of ... New York v ... ...
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Head v. Waldrup, 14734.
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