Mid-Continent Engineering Co. v. Arrow Petroleum Corporation, No. 732 Civil.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: ATWELL
• Citation: 45 F. Supp. 1000
• Parties: MID-CONTINENT ENGINEERING CO., Inc., v. ARROW PETROLEUM CORPORATION.
• Docket Number: No. 732 Civil.
• Decision Date: 18 August 1942

45 F. Supp. 1000

MID-CONTINENT ENGINEERING CO., Inc.,
v.
ARROW PETROLEUM CORPORATION.

No. 732 Civil.

District Court, N. D. Texas, Dallas Division.

August 18, 1942.

J. L. Goggans, of Dallas, Tex., for the motion.

Thompson, Knight, Harris, Wright & Weisberg, of Dallas, Tex., opposed.

ATWELL, District Judge.

Plaintiff entered the state court claiming $47,202.51 to be due it on a contract theretofore executed between it and the defendant for the erection of a refinery. It is a Kansas corporation; the defendant is an Illinois corporation. The defendant seasonably removed.

The plaintiff sought service and jurisdiction over the defendant by securing a writ of attachment which it caused to be levied upon a number of pieces of personal property in Dallas.

In contending that its claim was unliquidated, it sought and secured from the district judge, an order fixing the attachment bond at $6,000. Later, the defendant replevied, and now seeks to quash the attachment on the ground that the plaintiff's claim was liquidated, and being liquidated, the Texas attachment statute, Vernon's 1936 Civ.St. art. 281, required the bond to be double the amount of the claim.

The plaintiff does not concede this position, but does contend that the defendant having replevied, has waived its right to quash.

45 F. Supp. 1001

The contest centers around the construction of Texas statutes. This court must, therefore, follow the path of the highest courts of that state in passing upon the issue. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.

The exact amount claimed by the plaintiff is figured on the words of the contract attached to its petition. The amount claimed is made up of two items. The first is $20,592.31, being the exact difference between the value of materials furnished and the amount paid it by the defendant. The second amount is figured upon the contract agreement of 15% on the total engineering work performed, to-wit, $177,401.34, which amounts to $26,610.20, and these two items aggregate the amount sued for. There appears to be no question that the cause of action is liquidated rather than unliquidated. Sweatt et al. v. Grogan et al., D.C., 25 F.Supp. 585. The liberality in defining "liquidated," seems to be justified by the harshness of the remedy of attachment.

The plaintiff's reasoning that the replevin waived the statutory requirement just mentioned is in harmony with the majority of the decisions of other states,...