Zumbrunn v. Schwartz

• Decision Date: 24 February 1927
• Citation: 17 F.2d 609
• Parties: ZUMBRUNN v. SCHWARTZ.
• Court: U.S. District Court — Panama Canal Zone

17 F.2d 609 (1927)

ZUMBRUNN v. SCHWARTZ.

District Court, D. Indiana, Hammond Division.

February 24, 1927.

Harker & Irwin, of Frankfort, Ind., and John H. Connaughton, of Washington, D. C., for plaintiff.

W. L. Parkinson and George W. Kassabaum, both of Lafayette, Ind., for defendant.

SLICK, District Judge.

The question for decision is on the motion to remand. William F. Zumbrunn, trustee, a citizen of Maryland, brought suit against John E. Schwartz, a citizen of Indiana, in the circuit court of Carroll county, Ind., on two promissory notes, of $1,000 each. Defendant Schwartz filed answer in five paragraphs: The first, a general denial; the second, a plea of payment; the third, a plea of no consideration; the fourth and fifth alleging a counterclaim on different theories, and praying for judgment in the sum of $15,000.

Plaintiff was ruled to reply to the second and third paragraphs of answer, and to answer the paragraphs asserting counterclaim. Plaintiff, in due time and after giving proper notice, filed his petition for removal, verified by himself before a notary public of the District of Columbia. He satisfied the statute by filing a good and sufficient bond. Defendant Schwartz filed a motion in the state court to strike out and reject the petition, and the motion was sustained. Whereupon plaintiff filed a transcript of the entire proceeding with the clerk of this court.

Counsel for Schwartz, defendant in the state court, argue that the petition for removal is not verified as required by law, for, although it purports to be sworn to before a notary public in the District of Columbia, no certificate of the clerk of any court is attached showing that said notary public is duly empowered to administer oaths. Congress, while providing that the petition shall be verified, has not provided that the certificate shall be in accordance with the state statute, and the procedure prescribed by the federal statute excludes that of the state practice. It was not necessary to have the authority of the notary public certified. Congress has provided that, where acknowledgments or verification are required, they may be taken before a notary public of any state.

Even if the verification were defective, this, however, would not be sufficient cause to remand, as it would be permissible to amend the removal petition or the verification thereof. McMaster, Inc., v. Chevrolet Motor Co. (D. C.) 3 F.(2d) 469.

Defendant's second assigned reason for urging his motion to remand is more serious. It is that plaintiff in the original suit in the state court has no right under the statute to remove, that right being reserved to defendants only. This is a very interesting and important question. Where the original suit is for less than the amount required by the removal statute, and defendant counterclaims for an amount in excess of the amount necessary to allow removal, defendant cannot then demand removal. This seems to be the settled law and is well supported by the authorities. McKown v. Kansas & T. Coal Co. (C. C.) 105 F. 657; LaMontagne v. Harvey Lumber Co. (C. C.) 44 F. 645; Hansen v. Pacific Coast Asphalt Cement Co. (D. C.) 243 F. 283.

But there is no logical reason why the plaintiff in the state court should not, under such circumstances, be allowed to remove, unless it be the very technical one that he is the titular plaintiff in the state court, and only defendants are given this right under the statute. The decisions are not in harmony on this proposition, and therefore it becomes the duty of this court to follow those decisions which seem to be the best reasoned and most firmly grounded in the law.

West v. Aurora City, 6 Wall. 139, 18 L. Ed. 819, decided by the Supreme Court in 1867, is cited frequently as an authority holding against the right of removal under circumstances similar to those here; but this case was decided under Removal Act 1789, § 12 (1 Stat. 79) which limited the right of removal to a defendant who had not submitted himself to the jurisdiction of the state court, except to enter his appearance for the purpose of removing the case. The act of 1789 differed materially from the present Removal Act (Comp. St. §§ 1010-1021), and that case was for an amount greatly in excess of the amount required by the removal act then in force. This does not clearly appear in the reported case, but the history of this case in the courts of Indiana discloses this fact. See City of Aurora v. West, 22 Ind. 88, 85 Am. Dec. 413, and City of Aurora v. West, 25 Ind. 148.

Hence the plaintiff, who sought removal, could have brought his suit originally in the federal court, but voluntarily chose the forum of the state tribunal. This case is easily distinguishable from the case at bar, where plaintiff, a nonresident, was compelled, owing to the small amount involved, to file his suit in the state court. In the case of Waco Hardware Co. v. Michigan Stove Co. (C. C. A.) 91 F. 289, the court, basing its opinion on the decision in West v. Aurora City, supra, sustained defendant's contention.

As against the conclusion followed in these two cases, there are several very strong cases holding diametrically opposite and allowing removal where the facts are quite similar to the case under consideration. Hansen v. Pacific Coast Asphalt Cement Co. (D. C.) 243 F. 283; Price & Hart v. Ellis & Co. (C. C.) 129 F. 482; Pierce v. Desmond (D. C.) 11 F.(2d) 327; Mason City & Ft. D. Railroad Co. v. Boynton, 204 U. S. 570, 27 S. Ct. 321, 51 L. Ed. 629.

The last case, supra, was a proceeding by a railroad company to condemn land. Appeal was taken to the state court. The statute of the state provided that, in proceedings of this nature, the landowner should be called plaintiff and the condemning corporation defendant. One of the questions submitted to the Supreme Court on...