Dulion v. SA Lynch Enterprise Finance Corporation, 6285.

• Decision Date: 14 December 1931
• Docket Number: No. 6285.,6285.
• Citation: 53 F.2d 568,82 ALR 509
• Parties: DULION v. S. A. LYNCH ENTERPRISE FINANCE CORPORATION.
• Court: U.S. Court of Appeals — Fifth Circuit

82 ALR 509, 53 F.2d 568 (1931)

DULION v. S. A. LYNCH ENTERPRISE FINANCE CORPORATION.

No. 6285.

Circuit Court of Appeals, Fifth Circuit.

November 19, 1931.

Rehearing Denied December 14, 1931.

Winfield P. Jones, of Atlanta, Ga., for appellant.

E. W. Moise, of Atlanta, Ga., for appellee.

Before BRYAN, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

On December 7, 1928, the appellant, by making affidavit and giving bond in the superior court of Fulton county, Ga., pursuant to provisions of Georgia statutes (Michie's Georgia Code 1926, §§ 5055, 5056) procured the issue of a writ of attachment commanding the seizure of property of the appellee. The attachment affidavit alleged that appellee is indebted to appellant in a stated sum in excess of $3,000, and that the debtor resides out of the state. On the same day the writ of attachment was executed by serving summons of garnishment. On December 12, 1928, before any declaration was filed by appellant, appellee filed in the superior court of Fulton county a petition for the removal of the cause to the court below on the ground of diverse citizenship. The state court accepted and approved the removal bond offered, and, on December 17, 1928, ordered the removal of the cause to the court below. A transcript of the record of the proceedings in the state court was filed in the court below on December 18, 1928. On January 19, 1929, the appellant filed in the court below a motion to remand the proceedings to the superior court of Fulton county, on the grounds, (1) that those proceedings consisting exclusively of the attachment sued out as above stated do not constitute a removable suit within the provisions of section 71 of title 28, United States Code (28 USCA § 71); and (2) that defendant had not pleaded, answered, or demurred within thirty days after the filing of the transcript in the court below. On January 26, 1929, the court below overruled the motion to remand, and allowed the appellant ten days from that date within which to file his declaration in the cause. Thereafter the appellant filed a declaration containing four counts. Upon the conclusion of the evidence introduced in a trial during the March, 1930, term of the court below, that court granted a motion for a nonsuit of counts 1, 2, and 4 of the declaration, and, upon the jury failing to agree upon a verdict as to count 3, ordered that a mistrial of the cause be declared. It does not appear from the record that the evidence given in the trial in which the motion for a nonsuit was granted was shown by a bill of exceptions allowed within the time permitted by law. The record in no way shows what that evidence was. In a trial of the cause on January 7, 1931, during the October term of the court below, the court declined to submit for the consideration of the jury the first, second, and fourth counts of the declaration after appellant had stated that he was prepared and proposed to sustain the same by competent evidence. Thereupon appellant tendered an amendment to the declaration by adding thereto counts 5, 6, and 7, which, respectively, were copies of counts 1, 2, and 4, which had been nonsuited as above stated. The court disallowed the proposed amendment.

The suing out of a writ of attachment for the enforcement of an alleged debt is a suit within the meaning of the statute (28 USCA § 71) providing for the removal of a "suit of a civil nature, at law or in equity"; the word "suit" being a comprehensive one, and applying to any proceeding in a court of justice whereby a remedy given by law for the enforcement of a claim or demand is sought. Cohens v. Virginia, 6 Wheat. 264, 407, 5 L. Ed. 257; Sewing Machine Companies Case, 18 Wall. 585, 21 L. Ed. 914. Though no declaration had been filed when the removal was applied for, being permitted to be filed during the term to which the attachment was returnable (Michie's Georgia Code, 1926, § 5102), the suit, shown by the attachment affidavit to be on a demand for money, was removable at the time the removal was applied for. Clark v. Wells, 203 U. S. 164, 27 S. Ct. 43, 51 L. Ed. 138; Courtney v. Pradt, 196 U. S. 89, 25 S. Ct. 208, 49 L. Ed. 398; Remington v. Central Pacific R. R. Co., 198 U. S. 95, 25 S. Ct. 577, 49 L. Ed. 959; Dulion v. Lynch Enterprise Finance Co., 40 Ga. App. 431, 149 S. E. 812. In such a case as the instant one the levy of the attachment is the commencement of the suit. Fincher v. Stanley Electric Mfg. Co., 127 Ga. 362, 364, 56 S. E. 440. The provision of the statute (28 USCA § 72) with reference to the party removing the cause, within thirty days after entering in the court to which it is removed a certified copy of the record in such suit, pleading, answering, or demurring to the declaration or complaint in said cause, evidently applies to a removed cause in which a declaration or complaint had been filed when the certified copy of the record therein was required to...