Floyd v. Floyd

• Decision Date: 09 March 1926
• Docket Number: No. 3596.,3596.
• Citation: 11 F.2d 841
• Parties: FLOYD v. FLOYD.
• Court: U.S. Court of Appeals — Seventh Circuit

11 F.2d 841 (1926)

FLOYD v. FLOYD.

No. 3596.

Circuit Court of Appeals, Seventh Circuit.

February 12, 1926.

Rehearing Denied March 9, 1926.

Chas. H. Holt, of Salem, Ill., and R. J. Branson, of Centralia, Ill., for appellant.

W. R. Gilbert, of St. Louis, Mo., for appellee.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Appellant brought suit against the appellee in the circuit court of Marion county, Ill., to set aside a certain conveyance of real estate in that county on account of fraud and undue influence, and to compel an accounting of receipts and expenditures during the time defendant had charge of plaintiff's property under the conveyance and other instruments in writing executed at the same time. Appellee removed the case to the court below upon the ground of diverse citizenship. Issues were formed, a trial had, and the court dismissed the bill of complaint for want of equity. Appellant assigned three errors: (1) Overruling a motion to remand; (2) striking out certain paragraphs of the bill; and (3) dismissing the bill.

1. The ground for the motion to remand was the alleged defective certificate of the notary public who swore appellee to the petition for removal. The defect alleged was the failure of the notary to insert in her certificate that notaries public are authorized by the law of Missouri, where the petition was verified, to administer oaths. This is required by the Illinois statute. But the motion to remand was made in the United States District Court. In that court no proof was required of the law of Missouri. It took judicial notice of the laws of that state. The District Court, however, considered the certificate insufficient, and permitted the notary to amend her certificate, so as to comply with the Illinois statute. This was warranted under section 1051 of Barnes' Federal Code (Comp. St. § 1251c). That section provides:

"Where, in any suit * * * removed from any state court to any district of the United States, the jurisdiction of the District Court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was * * * removed, though defectively alleged, either party may amend at any stage of the proceedings * * * so as to show on the record such diverse citizenship and jurisdiction and thereupon such suit shall be proceeded with the same as though the diverse citizenship had been fully and correctly pleaded * * * in the petition for removal."

The claim in effect was that the averments of the petition for removal as to diverse citizenship were "defectively alleged"; that is, were not verified. Obviously the proper way to amend such defect was to amend the defective part, the notary's certificate. In any view the motion to remand was properly overruled.

2. In the parts of the bill stricken out it was sought to recover certain moneys alleged to have been advanced by appellant to appellee long prior to the execution of the instruments attacked as invalid and in no way connected with the wrongs complained of in their procurement. Equity rule No. 26 provides: "The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant." The cause or causes of action set up in the parts stricken out were not of equitable cognizance, and, being in no way connected with the main cause, were properly stricken out....