CIT Corporation v. Ambrose
| Decision Date | 23 December 1940 |
| Docket Number | Civil No. 392. |
| Citation | 36 F. Supp. 311 |
| Court | U.S. District Court — District of South Carolina |
| Parties | C. I. T. CORPORATION v. AMBROSE et al. |
Samuel Want, James S. Verner, and Sam Rogol, all of Darlington, S. C., for plaintiff.
Cordie Page, of Conway, S. C., for defendant A. J. Ambrose.
Epps & Epps, of Sumter, S. C., for defendant General Finance Co.
This case was removed from the Court of Common Pleas of Horry County on motion of the plaintiff. The matter is before me on defendants' motion to remand the case to the state court.
The suit originated with a complaint in which C. I. T. Corporation sued A. J. Ambrose alone, for an amount less than Three Thousand ($3,000) Dollars, due under an installment automobile contract. The plaintiff is a foreign corporation. The defendant Ambrose is a citizen of South Carolina. In his answer, Ambrose, in addition to denying the indebtedness, set up two counterclaims, and demanded judgment against the plaintiff for Fifty-One Hundred and Fifty ($5,150) Dollars. One of these counterclaims is apparently intended to state a cause of action for fraud and deceit, and the other a cause of action for conversion. Both causes of action relate to the automobile transaction upon which the plaintiff's claim is based. The plaintiff replied to the counterclaims, setting forth facts which, if proved, will show that the plaintiff did not convert the automobile in question, or commit the fraud alleged, but on the other hand the said automobile was taken by a third party, General Finance Company, under a claim of legal right founded upon an unquestioned chattel mortgage which had priority over the plaintiff's claim.
The plaintiff's motion thereafter made, that General Finance Company be brought into the cause as a party defendant, and that the plaintiff be permitted to amend its summons and complaint, and that the defendant Ambrose amend his answer accordingly, was granted by the State Court. Plaintiff thereupon served an amended complaint and while the prayer of the complaint asks for judgment against both Ambrose and General Finance Company, the allegations of the complaint show that no relief is claimed by the plaintiff against General Finance Company, and that no relief is in fact obtainable against it on the pleadings. It appears that it is brought into the case solely for the purpose of compelling it to disclose the true fact that it, and not the plaintiff, took possession and disposed of the automobile in question. In answering the amended complaint the defendant Ambrose, like the plaintiff, asks no relief whatsoever against General Finance Company.
The only questions before this Court are the sufficiency of the bond to sustain the removal, and whether the counterclaims present a separable controversy.
The bond in this case is made to the defendant, A. J. Ambrose. The name of General Finance Company does not appear therein. And counsel for defendants contend that in this respect the bond is fatally defective.
The pertinent provision of the applicable statute (28 U.S.C.A. § 72) is as follows: The removing party "shall make and file therewith the petition 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 in such suit, and for paying all costs that may be awarded by the said district court if said district court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein." It is not questioned that the bond was filed in time; that except in the respect above indicated the form of the bond is proper; that the amount of the bond is sufficient; and that the surety is financially responsible. The statute says nothing, it will be observed, as to how and to whom the bond shall be made payable. It directs merely that a good and sufficient bond shall be given, to assure the payment of all costs that may be awarded if the removal is held to have been improperly made. In other words, the bond is given for removal costs, and not for the costs of the case. Chase v. Erhardt, D.C., 198 F. 305. And if, in the event that the case is held to be improperly removed, the costs of the removal can be collected, it would appear to be clear that the bond is sufficient.
In the present case the removal arises out of the counterclaims of Ambrose against C. I. T. Corporation. General Finance Company is not concerned with such counterclaims. It is not brought into the federal court because of the counterclaims. Its presence in the federal court is a mere incident of the removal of the separate controversy between C. I. T. Corporation and Ambrose. The party aggrieved by the removal therefore is Ambrose alone. And if the removal were held to be improper, Ambrose could collect on the bond and there is no contingency in which any liability for removal costs could then fall on General Finance Company. That would appear to be conclusive of the issue. In 4 Hughes Federal Practice, § 2536, it is stated: "Although the statute does...
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