253 Mass. 234 | Mass. | 1925
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 § 29 of the Judicial Code, 36 U. S. Sts. at Large, 1095, c. 231, Act of March 3,1911, 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 § 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
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 & Ohio Railway v. Cockrell, 232 U. S. 146, 152, 154. Eaton v. Walker, 244 Mass. 23, 27, and cases there cited. Commonwealth v. Norman, 249 Mass. 123, 127. 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. 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
The case at bar is distinguishable from Howes v. Maxwell, 157 Mass. 333, 335, and Woogmaster v. Cutler, 252 Mass. 376, in both of which an instrument in law a bond was seasonably executed.
The ruling of the Superior Court was right, in our opinion. In accordance with the terms of the report the case shall proceed to trial and adjudication in the Superior Court.
So ordered.