Tanko v. Saperstein
| Decision Date | 24 January 1957 |
| Docket Number | No. 55 C 2250.,55 C 2250. |
| Citation | 149 F. Supp. 317 |
| Parties | Kalman TANKO, James E. Archambault and Titus Haffa, co-partners, doing business as Plastic Precision Parts Company, a co-partnership, v. Henry G. SAPERSTEIN, doing business as H. G. Saperstein & Associates, California Whistle Co., a corporation, TV Whistle Co., a corporation, Police TV Whistle Co., a corporation, and Whistle Molds Co., a corporation. |
| Court | U.S. District Court — Northern District of Illinois |
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Henry Pollenz, Solomon B. Rosenzweig, Chicago, Ill., for plaintiffs.
Marshall Korshak, Samuel D. Rothman, Milton T. Raynor, Chicago, Ill., for defendants.
The defendants in this proceeding have filed their motion to quash a writ of attachment because the affidavit filed in support of the writ was acknowledged before a notary public whose commission had expired. The plaintiffs have filed a counter-motion for leave to file an amended affidavit.
The action, brought for the recovery of a sum allegedly due upon a contract, was originally commenced in the Superior Court of Cook County, Illinois. Since the defendants were citizens and residents of California, not subject to service of process in Illinois, the plaintiffs sought and obtained the issuance of a writ of attachment against their property. Under this writ the Kellogg Company was served as garnishee, and has filed its answer. The defendants then removed the action to this Court, relying upon diversity of citizenship.
In this Court the defendants seek to quash the writ of attachment upon the ground that the document filed by the plaintiffs to support the attachment is not an "affidavit" within the meaning of Section 2 of the Illinois Attachment Act, Ill.Rev.Stat. c. 11, § 2, which provides:
"To entitle a creditor to such a writ of attachment, he or his agent or attorney shall make and file with the clerk of such court, an affidavit setting forth the nature and amount of the claim, so far as practicable, after allowing all just credits and set-offs, and any one or more of the causes mentioned in the preceding section, and also stating the place of residence of the defendants."
The proceedings are defective, it is claimed, because the purported affidavit was not subscribed and sworn to before a legally authorized notary public, but rather before a person whose notarial commission had expired some ten months before the execution of the ostensible affidavit.
The plaintiffs argue in response that this defect does not impair the validity of the attachment and, alternatively, that the defect may be cured without affecting the attachment by the filing of an affidavit executed with the requisite formality.
By removing the action to this Court the defendants have not waived any objections to the attachment or to the jurisdiction of the state court. See Clark v. Wells, 1906, 203 U.S. 164, 27 S.Ct. 43, 51 L.Ed. 138; Wabash Western Ry. v. Brow, 1896, 164 U.S. 271, 279, 17 S.Ct. 126, 41 L.Ed. 431; Employers Reinsurance Corp. v. Bryant, 1937, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289.
Turning first to the plaintiffs' motion for leave to file an amended affidavit, and assuming for purposes of discussion that the affidavit filed is subject to attack, we encounter first the question whether Federal law or the law of Illinois is to control. The Federal statutes furnish no clear guide to the source of the governing rule. Section 1450 of the Judicial Code, 28 U.S.C. § 1450, suggests that state law applies; it provides in part:
Rule 64 of the Federal Rules of Civil Procedure, 28 U.S.C. appears to qualify the implication that state law controls the question of amendment, and to contemplate that liberal federal amendment policies will be followed. That Rule states in part:
See also Rule 81(c), Federal Rules of Civil Procedure.
Among the Rules referred to in these provisions is Rule 4(h), which authorizes amendment of "any process or proof of service thereof * * * unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued."
Similarly, Section 1448 of the Code indicates that amendment of the attachment process is to be governed by the rules applicable to the amendment of process in actions originally commenced in Federal courts. It provides:
In the interpretation of a predecessor of this statute, the power to amend "process" has been read to encompass amending an affidavit in support of attachment or garnishment, even though amendment in a court of the state would be denied. Thus in Booth v. Denike, C.C.W.D.Tex.1894, 65 F. 43, Judge Maxey observed:
A similar conclusion was reached by Mr. Justice Matthews, sitting as Circuit Justice, in Erstein v. Rothschild, C.C.E.D.Mich.1884, 22 F. 61. There the plaintiff's affidavit required for the issuance of an attachment had omitted to state the nature of the plaintiff's claim, as prescribed by Michigan law. The plaintiff sought to amend his affidavit to remedy the omission, and amendment was allowed despite the fact that Michigan courts would have denied it. In the course of the opinion, holding that Federal law controlled, the Court stated:
"* * * It is not a sufficient reason that the courts of Michigan do not so apply a similar statutory provision for amendments, because the reasons on which these courts proceed do not apply to attachment suits in the courts of the United States * * *". 22 F. at page 66.
More recent decisions have continued to apply Federal law to determine the propriety of amending affidavits in attachment, concluding that neither the promulgation of the Federal Rules of Civil Procedure in 1938 nor the revision of the Judicial Code in 1948 compels a different result. In Robert W. Irwin Co. v. Sterling, Inc., D.C.W.D.Mich.1953, 14 F.R.D. 250, the affidavit supporting garnishment upon a counterclaim failed to aver that the affiant was an agent or attorney of the claimant, an allegation required by Michigan law. The Court found that the affidavit as filed was "fatally defective as failing to comply with the statutory requirements." 14 F.R.D. at page 254. But the Court allowed amendment of the affidavit, and denied the motion to quash, by applying Federal law. On this question the opinion states:
. 14 F.R.D. at page 254.
Professor Moore in his treatise reviews and summarizes these authorities, and agrees with them that Federal law controls. He states:
"* * * On the other hand, while state law, under Rule 64, determines the sufficiency of affidavits in attachment and garnishment proceedings, federal law determined the right to amend the affidavits prior to the Federal Rules; this rule still continues so that the court, in its discretion, may permit them to be...
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