Chase v. Erhardt

• Decision Date: 20 July 1912
• Court: U.S. District Court — District of Vermont
• Parties: CHASE et al. v. ERHARDT.

198 F. 305

CHASE et al. v. ERHARDT.

United States District Court, D. Vermont.

July 20, 1912

V. A Bullard, of Burlington, Vt., for plaintiffs.

W. N Theriault, of Montpelier, Vt., and M. C. Webber, of Rutland Vt., for defendant.

MARTIN District Judge.

This is an action on the case for breach of warranty claiming damages to the amount of $5,000. One plaintiff is a citizen of Vermont, the other of Connecticut, and the defendant is a citizen of Massachusetts. The suit was brought in the Rutland county court of the state of Vermont and removed to this court on the petition of the defendant. The plaintiff moved that the case be remanded to the state court. On hearing it was claimed by the plaintiff:

(1) That no written notice of the petition and bond for removal was given before the filing of said petition and bond by the defendant.

(2) That the bond is not in compliance with the provisions of the Judicial Code in that its proviso is that a certified copy of record shall be filed in the federal court on or before the first day of the term, whereas said Judicial Code requires that it shall be within 30 days.

(3) That the petition for removal contains no allegation that the defendant has a just defense and intends to make it.

(4) That a certified copy of record was not filed by the defendant within 30 days.

I. Written Notice.

It appears that the state court was satisfied that written notice was furnished to the counsel of record in that court in accordance with the provisions of law. I find, from the affidavit of the clerk of the state court and the evidence of M. C. Webber, Esq., that a copy of the petition for removal was furnished counsel of record in the state court before the same was filed, and that the notice was satisfactory to that court, and it should be and is to this court.

II. Defective Bond.

The alleged defect of the bond is that it does not provide for the filing of a certified copy of record within 30 days. Instead of that, it provides for the entering of said copy on the first day of the next term of court. The provisions as to the bond were changed by the Judicial Code. The Code, Sec. 29, requires that the bond shall provide for the filing of a certified copy of record within 30 days.

The party praying for removal, having filed a bond that does not comply with the statute, upon objection being made, may amend or file a new bond to the satisfaction of the state court. In the case at bar, had counsel for the plaintiff objected to the bond, the state court could have required an amendment or a new bond before granting the prayer of the petition. This bond is simply to compel the party petitioning for removal to actually enter the case in the federal court and pay costs if he fails in his removal proceedings. If the party petitioning for removal fails to enter his case in the federal court, then there is a liability under the bond for whatever damages the adverse party may suffer. This bond was executed and filed in accordance with the provisions of the statute as it was prior to the enactment of the Judicial Code, and within three months of the time when the Judicial Code took effect. The attention of counsel for the defendant had not been called to the change made in the Judicial Code. The removal proceedings were instituted in good faith under a constitutional right, and with no intent to hinder or delay, and immediately upon the entering of the case in the federal court there was a general appearance by counsel for the plaintiff. The certified copy of record has been filed in good faith, and no delay is caused to the prosecution of the case. This defect in the bond relates to the mode of procedure and is not fatal to the defendant's right to remove. I am aware that there are cases where the courts have held that, where a defective bond has been filed in the state court, it cannot be amended in the federal court, and the case should be remanded; but to my mind the cases cited below are the better authority, based upon better reasons, and result in a more just administration of the law. Harris v. Delaware L. & W.R. Co. (C.C.) 18 F. 833; Overman Wheel Co. v. Pope Mfg. Co. (C.C.) 46 F. 577; Deford v. Mehaffy (C.C.) 13 F. 481.

Justice Bradley in Ayers v. Watson, 113 U.S. on pages 598 and 599, 5 Sup.Ct. 641, 643, 28 L.Ed. 1093, briefly discusses what are formal and what are jurisdictional questions in matters of removal in these words:

'We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and, if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time in which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation. In some of the older cases the word 'jurisdiction' is often used somewhat loosely, and no doubt cases may be found in which this matter of time is spoken of as affecting the jurisdiction of the court. We do not so regard it.'

Rose's Code of Federal Procedure, vol. 2, Sec. 1138, a recent and excellent authority, states this:

'By comity at least, the state court, or the judge in vacation, should be given opportunity to pass upon the petition and bond. Its acceptance and order of removal thereon relate back to the filing of petition and bond. Moreover, there are advantages in formally presenting the petition and bond and obtaining their acceptance and an order of removal. Defects may be pointed out which the party can remedy by amendments; and the fact that the state court has formally accepted the petition and bond, places the removing party in a better position to enjoin the state court's proceedings, or to obtain amendment in case defects are made the basis of objection in the Circuit Court. ' Guarantee Co. v. Hanway, 104 F. 369, 44 C.C.A. 312.

See, also, cases cited below under point IV.

III. Allegation of Defense.

The statute does not require that a party in a petition to remove shall assert that he has a just cause or a just defense and intends to prosecute it. See chapter 3 of the Judicial Code.

IV. Filing of Record.

The Judicial Code provides that one of the conditions of the bond shall be that a certified copy of record shall be filed in the federal court within 30 days. Before the enactment of the Code it was to be filed on or before the first day of the next term of the federal court. Congress evidently intended by this change that the party petitioning for removal should have 30 days in which to secure his copy of record from the state court, and that there should be no confusion or embarrassment as to the date of the next succeeding term of the federal court. There is not a word in section 29 of the Judicial Code, which relates to the procedure of removal, indicating that Congress was demanding or intending to require a more strict enforcement of the rules and regulations as to the procedure in the removal of causes. The Judicial Code nowhere provides that the entry of the copy of record in the federal court shall be within 30 days.

'The said copy being entered within said thirty days, as aforesaid, in said District Court of the United States, the parties so removing the said cause shall within thirty days thereafter plead,' etc.

The words above quoted, 'as aforesaid,' refer to the provision as to the bond, viz.:

'A bond, with good and sufficient surety, for his or their entering in such district court, within thirty days from the date of filing said petition, a certified copy of the record.'

The Judicial Code was approved March 3, 1911, to take effect January 1, 1912. Former statutes which provided for the filing of the copy of record on or before the first day of the next term, as above stated, have been construed rigidly by some judges and liberally by others. The trend of authorities is that the provisions of law relating to the filing of the copy of record are not mandatory, but directory, and that the court should exercise a discretion in the matter, the line to be drawn upon good faith on the part of the moving party; and if a slip is made in a step in the process of removal, the party should not thereby necessarily lose a constitutional right. It had been held, before the enactment of the Judicial Code, that bonds might be amended and the time for filing...