Brann v. McBurnett, 8366.

• Decision Date: 19 September 1939
• Docket Number: No. 8366.,8366.
• Citation: 29 F. Supp. 188
• Parties: BRANN et al. v. McBURNETT et al.
• Court: U.S. District Court — Eastern District of Arkansas

29 F. Supp. 188

BRANN et al. v. McBURNETT et al.

No. 8366.

District Court, E. D. Arkansas, W. D.

September 19, 1939.

Moore & Brazil, of Morrilton, Ark., for plaintiffs.

Leon B. Catlett, Asst. U. S. Atty., of Little Rock, Ark., for defendants.

LEMLEY, District Judge.

This cause was originally instituted in the Circuit Court of Conway County, Arkansas, and removed to this court under Section 33 of the Judicial Code, 28 U.S.C. A. § 76, and comes on for hearing upon motion of the plaintiffs to remand the cause to the state court.

In the complaint filed in the state court, the plaintiffs allege that they were injured and that they suffered property damage on account of the negligent operation of an automobile by the defendants, on Highway No. 64, in Conway County, Arkansas, on July 21, 1937.

Prior to trial or final hearing in the state court, the defendants filed in this court their petition for removal, setting up that they were on said date, and are now, duly appointed, qualified and acting Deputy Marshals of the United States District Court for the Eastern District of Arkansas, and at all times mentioned in the plaintiffs' complaint they were acting solely under color of their said office and in the performance of the duties of said office in that they were engaged in the duty of transporting federal prisoners from the City of Little Rock, in the State of Arkansas, to the City of Leavenworth, in the State of Kansas, and that all of the acts done by them in connection with the matters set forth in the plaintiffs' complaint were committed by them under color of their said office and in the performance of their duties as such officers.

The plaintiffs set up in their motion to remand that the cause should be remanded for the reasons: First, that their complaint does not allege the commission of any official wrong or tort by the defendants or either of them in the discharge of any duty; and secondly, that their complaint "alleges negligence in the operation of an automobile upon the public highways, which is not, as a matter of law, an official act of said officers, and for which the principal officer and his bond would not be liable".

The pertinent part of the statute under which this cause was removed, Section 33 of the Judicial Code, 28 U.S.C.A. § 76, is as follows: "When any civil suit or criminal prosecution is commenced in any court of a State * * * against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer * * * the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court."

Little need be said with reference to the plaintiffs' first contention to the effect that the cause should be remanded because their complaint does not allege the commission of any official wrong or tort by the defendants or either of them in the discharge of any of their official duties. The right of removal under Section 33 of the Judicial Code is in no way dependent upon the allegations of the plaintiffs' complaint. The jurisdiction of the federal court on the other hand, as stated in Virginia v. Paul, 148 U.S. 107 at page 122, 13 S.Ct. 536, 37 L.Ed. 386, rests and depends upon the statements made in the petition for removal, and verified by the oath of the petitioner.

In connection with their second...