Mahoney v. United States Shipping Bd. Emergency Fleet Corp.

• Decision Date: 03 July 1925
• Citation: 253 Mass. 234,148 N.E. 454
• Parties: MAHONEY v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 234

148 N.E. 454

MAHONEY

v.UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1925.

Report from Superior Court, Suffolk County; P. J. O'Connell, Judge.

Action of tort by Edward Francis Mahoney against the United States Shipping Board Emergency Fleet Corporation and others. Plaintiff's motion to dismiss defendants' petition for removal of case to District Court of the United States was allowed, and case reported. Affirmed. Case to proceed to trial in superior court.

J. W. Lowrance and J. L. Hurley, both of Boston, for plaintiff.

L. Curtis, II, of Boston, for defendants.

RUGG, C. J.

The question here presented is the correctness of a ruling concerning the removal of the case to the District Court of the United States. It is conceded that the action is, as to parties and subject-matter, removable from the state to the federal court.

It is provided in section 29 of the Judicial Code, 36 U. S. St. at Large 1094, c. 231, Act of March 3, 1911 (U. S. Comp. St. § 1011), that a party desiring to remove a suit from the state to the federal court of the United States ‘may make and file a petition, duly verified, in such suit in such state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the district court * * * and shall make and file therewith a bond, with good and sufficient surety,’ for the purposes therein stated. In the case at bar the defendant, on January 28, 1924, filed in the superior court a petition to remove under this section. No objection is raised as to the petition. At the same time it filed a paper entitled ‘Bond on Removal.’ That paper contained no recital that it was to be sealed and was not, in fact sealed. On January 30, 1924, the plaintiff filed a motion to dismiss the petition to remove on the ground that the petition was accompanied by no bond as required by law, and that the writing called a bond was in no sense a bond because not properly executed and having no seals. On February 6, 1924, which was after the expiration of the time limited by section 29 of the Judicial Code for filing the petition and bond, a paper entitled ‘Amended Bond’ was offered for filing with the clerk of the superior court without notice to counsel for the plaintiff. This amended bond was duly sealed. It is admitted that this amended bond was executed subsequent to February 1, 1924. The superior court refused to allow this bond to be filed. The plaintiff's motion to dismiss the petition for removal was allowed, the court ruling, as matter of law, that the writing entitled ‘Bond of Removal’ and filed with the petition for removal, was not an instrument under seal and did not in point of law constitute a bond; that the ‘Amended Bond,’ having been filed after the expiration of the time limited and after the period allowed for appearance and answer, was not a compliance with the provisions for removal contained in the Judicial Code; and that the case, therefore, had not been removed and the superior court continued to have jurisdiction. The correctness of this ruling is reported for consideration.

[1][2][3][4][5] A decision of this question of law must be made by this court, although its final determination is within the jurisdiction of the Supreme Court of the United States. On a petition for removal, all disputed questions of fact must be tried in the federal court; they cannot be passed upon by the state court. It is the duty of the state court to consider and adjudicate, subject to review by the Supreme Court of the United States, whether on the face of the record the case ought to be removed. Chesapeake & O. R. v. Cockrell, 232 U. S. 146, 152, 154, 34 S. Ct. 278, 58 L. Ed. 544;Eaton v. Walker, 244 Mass. 23, 27, 138 N. E. 798, and cases there cited. Commonwealth v. Norman, 249 Mass. 123, 127, 144 N. E. 66. It is to be observed that the section of the Judicial Code here in question is in form permissive as to the filing of a petition for removal by any party entitled to removal, but mandatory as to filing an accompanying bond, provided a petition for removal is filed. It seems plain to us that the paper entitled ‘Bond on Removal’ filed with the petition for removal, was not a bond. It is elementary law that a bond imports a seal. ‘A bond is merely an obligation under seal.’ Commonwealth v. Smith, 10 Allen, 448, 455, 87 Am. Dec. 672. As is said in Williston, Contracts, § 205:

‘The obligation of the maker of a sealed instrument under the common law depends wholly on certain forms being observed. If the forms are observed the obligation is binding. The instrument is not evidence of an obligation, it is the obligation itself.’

The converse of this is equally true, that if the instrument bears no seal, it is not a bond, and the obligation does not exist. The common law as to bonds has been adhered to with some strictness in this commonwealth. It was said in Burns v. Lynde, 6 Allen, 305, 312, respecting a bond, that:

‘It is highly useful that a class of instruments should exist, to which persons may resort with a feeling of confidence that they shall not be binding till they are formally executed, and that when thus executed they shall not be liable to be varied or controlled.’

Other cases emphasize the necessity of a seal in order to constitute a bond. Banorgee v. Hovey, 5 Mass. 11, 24,4 Am. Dec. 17;Tasker v. Bartlett, 5 Cush. 359, 364;Bates v. Boston & New York Central R. Co., 10 Allen, 251, 254, 256;Hendee v. Pinkerton, 14 Allen, 381, 389;Macurda v. Fuller, 225 Mass. 341, 344, 114 N. E. 366;U. S. Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 470, 114 N. E. 734. This is the law of the Supreme Court of the United States, as we understand it. In Koshkonong v. Burton, 104 U. S. 668, 673, 26 L. Ed. 886, it was said:

‘The word ‘bond’ at common law (and even now as a general rule) imports a sealed instrument.'

In De Ganay v. Lederer, 250 U. S. 376, 381, 39 S. Ct. 524, 526 (63 L. Ed. 1042) occur these words quoted from Blackstone v. Miller, 188 U. S. 189, 206, 23 S. Ct. 277, 279 (47 L. Ed. 439):

‘Bonds * * * are more than merely evidences of debt. The debt is inseparable from the paper which declares and constitutes it, by a tradition which comes down from more archaic conditions. Bacon v. Hooker, 177 Mass. 335, 337 [58 N. E. 1078,83 Am. St. Rep. 279].’

[6][7][8] It seems to us that the filing of an instrument valid as a bond within the time limited, is a condition precedent to removal under section 29 of the Judicial Code. Doubtless ordinary pleadings or instruments may be amended by permission of the court; but we are of opinion that an instrument which is not a bond at all because lacking in an essential...