Loop v. Winters' Estate, 115 F. 362

115 F. 362 | U.S. Circuit Court for the District of Nevada | 1902

HA WHEY, District Judge

(orally). The contention of counsel for plaintiff is: (x) That the petition for removal was not presented to the state court, and that there is no order of removal. (2) There is no bond on removal, the instrument filed as such not being under seal; that the state court has the right to pass upon the sufficiency of the bond before it loses its jurisdiction. (3) That the petition does not show that all of the defendants are citizens of another state from that of plaintiff, nor that the cause of action is separable.

No affidavits are presented in support of this motion, and no plea interposed to the jurisdiction of the court. The jurisdictional facts set forth in the petition must, therefore, be presumed to be true, unless the whole record, upon inspection, affirmatively shows something to the contrary. 18 Enc. PI. & Prac. 372, 377, and authorities there cited. The record shows that petitioners for removal did “make and file a petition in such suit in such state court” within the time and in the manner required by law (25 Stat. 1888, p. 435, § 3); that a bond was filed, and that the judge of the state court indorsed thereon, “The foregoing bond is hereby approved.” What more was needed?

Counsel say there was no seal affixed to the paper called a bond, and that for that reason it was not a legal bond, but admit that the point is purely technical. It has been held that the omission of a seal on a removal bond is a mere formal defect, which can be cured by amendment. The omission of the seal furnishes no sufficient ground to justify the court in remanding the case. The question whether a seal is essential or not depends upon the provisions of the statute. G. V. B. Min. Co. v. First Nat. Bank, 36 C. C. A. 633, 95 Fed. 23, 33. It is not made essential by the statutes of the United States or the statutes of this state. The statutes of the United States do not, in terms, require a seal. Section 3 of the act to regulate removal of causes, approved August 13, 1888, simply requires that petitioners for removal of a cause shall file with their petition “a bond with good and sufficient sureties.” 25 Stat. p. 435. The seal is certainly not essential under the statute of this state approved February 20, 1883, which expressly provides:

“The word ‘seal,’ and the initial letters ‘L. S.’ and other words, letters, or characters of like import, opposite the name of the signer of any instrument in writing, are hereby declared unnecessary to give such instrument legal effect, and any omission to use them' by the signer of any instrument shall not be construed to impair the validity of such instrument.” Cutting’s Comp. Ann. Laws, § 2735.

. The bond approved by the state court is a valid, binding, and sufficient bond, with sufficient surety, as required by the act of congress and laws of this state. As was said in Construction Co. v. Simon (C. C.) 53 Fed. 1, 3:

“The bond is regular in all respects. There is nothing to show any insufficiency or defect in it, or want of sufficiency in the sureties thereon. It was properly executed and acknowledged, both by the obligor and its sureties, and was formally approved and accepted by the state court to which it was tendered. This court, if it could rightfully review the action of the state court in approving and accepting the bond tendered, is unable to discover from the record any error in the proceeding.”

Counsel for plaintiff claims that there was no order for removal made by the state court. None is necessary. The statute provides that after the filing of a petition and bond “it shall then be the duty of the state court to accept said petition and bond, and proceed no further in said suit.” 25 Stat. 1888, § 3. No statute or rule of practice requires a defendant to give notice to a plaintiff of the filing of a petition for the removal of a cause from a state to a federal court. Chiatovich v. Hanchett (C. C.) 78 Fed. 193, 194, and authorities there cited.

In Noble v. Association (C. C.) 48 Fed. 337, 338, the court said:

“Certainly, It is the decorous practice for the moving party to present his petition and bond to the judge of the state court, and obtain the formal acceptance of the court. It is also the safer practice, because he can thereby have an opportunity to obviate any remedial objections which are suggested to their sufficiency in case the court refuses to accept them. But this is not indispensable, and when they are brought to the attention of the court in the manner prescribed by the statute, by filing them in the suit, the court can proceed no further, if they are sufficient. When filed, they become a part of the record in the cause, and the court is judicially informed that its power over the cause has been suspended.”

Iii Eisenmann v. Mining Co. (C. C.) 87 Fed. 248, this court said:

“The- law is now well settled * * * that, when a sufficient cause for removal is made in the state court, its jurisdiction ends, and no order of the state court for removal is necessary. In other words, upon the filing of the petition for removal, accompanied by a proper bond, — the suit being removable under the statute, — the jurisdiction of the federal court immediately attaches in advance of the filing of the copy of the record; and whether that court should retain jurisdiction is for it, and not for the state court, to determine.’'

Sec, also, Kern v. Huidekoper, 103 U. S. 485, 490, 26 L. Ed. 354; Marshall v. Holmes, 141 U. S. 589, 595, 12 Sup. Ct. 62, 35 L. Ed. 870, and authorities there cited; Lund v. Railroad Co. (C. C.) 78 Fed. 385; 1 Desty, Fed. Proc. § 110, and authorities there cited; Mecke v. Mineral Co., 35 C. C. A. 151, 93 Fed. 697, 700.

In reply to the contention of counsel that the petition does not show that all of the defendants are citizens of another state from that of plaintiff, nor that the cause of action is separable, it is sufficient to state that the record shows that the only parties in interest as defendants at the time the suit was brought and petition for removal filed were F. W. Clark and Phoebe Hearst. . The estate of Aaron Winters was not legally before the court. There was no legal representative of the estate. There are no allegations in the complaint that the estate had ever been administered upon; that any executor or administrator had ever been appointed. In that condition of affairs the estate of Winters, J. C. McClanahan and Alexander Falconer were not properly before the court. If it was the intention of the pleader, in drawing the complaint, as he now claims, to sue McClanahan and Falconer as individuals, and make them co-conspirators in the alleged fraud and conspiracy, he should have so framed his averments. The complaint is not susceptible of that construction as drawn. It appears therefrom that both of said parties were made defendants solely on account of their official relation to-the estate of Aaron Winters, deceásed. This, in my opinion, is the only legal construction that can be given to the language of the complaint. The estate of Winters could not be bound unless there was in existence a legal representative. There was none. The estate of Winters is therefore a sham defendant, having no interest or standing in this.suit. The joinder of such a defendant does not prevent a removal. 18 Enc. PI. & Prac. 202, and authorities there cited. The record shows that McClanahan “has never qualified as executor of the last will and testament of Aaron Winters, deceased, nor have letters testamentary ever issued to him upon said will; that he has abandoned the application filed by him in the above-entitled court for issuance of such letters testamentary to him; and that he hereby renounces his right to apply for letters testamentary upon said will.” He could not, therefore, be sued in his official capacity “as executor of the last will and testament of said Aaron Winters, deceased,”- — First, because he had not been appointed as such; and, second, he had abandoned his application and renounced his right to apply for letters testamentary upon said will. Even if Falconer could be considered as a party defendant, the petition for removal shows that he was a citizen and resident of the state of California. As for the other defendants sued by fictitious names, they will be regarded as merely formal parties, whose presence on the record cannot affect the proceedings on removal. Parkinson v. Barr (C. C.) 105 Fed. 81, 82. It is the duty of the court to consider only the citizenship and residence of the parties whose real names are disclosed in the pleadings. 18 Enc. PI. & Prac. 195, 196, and authorities there cited. From the facts appearing in the complaint and petition for removal,, the only real parties defendants are shown to be citizens and residents-of California, who have the right, on the ground of diversity of citizenship, to have the cause removed to this court. The fact that McClanahan unnecessarily joined in- the petition does not affect their rights-to have the case removed. Snow v. Smith (C. C.) 88 Fed. 657, 659.

The only controversy existing in this suit at the time of its commencement and at the time of the filing of the petition for removal was-between the plaintiff, a citizen and resident of Nevada, and F. W. Clark and Phoebe Hearst, citizens and residents of the state of California, and it is therefore unnecessary to consider whether or not, there would be any separable controversy between them and the estate of Winters, if said estate had been properly brought into court.

The motion to remand is denied.