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Tucker v. Kerner.

decided: December 29, 1950.

TUCKER
v.
KERNER.



Author: Major

Before MAJOR, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

Plaintiff, Preston T. Tucker, filed his complaint in the Superior Court of Cook County on March 21, 1950, charging malicious prosecution by the defendants, Otto Kerner, Jr., United States Attorney for the Northern District of Illinois, and two of his assistants, Lawrence J. Miller and Robert J. Downing, Thomas B. Hart, William G. Kelly and James E. Murnane, officers and employees of the Security and Exchange Commission, an agency of the United States of America, Luis J. Kutner, a licensed attorney of the city of Chicago, and Harry A. McDonald. The case was allegedly removed to the United States District Court for the Northern District of Illinois, where following certain proceedings, to be subsequently discussed, the complaint was, on May 29, 1950, dismissed for failure to state a cause of action. From this order of dismissal the appeal comes to this court.

The proceedings in the District Court were conducted before Honorable Michael L. Igoe, a Judge of that court, who entered the order appealed from. Any question on this appeal as to the merits of the cause or the propriety of the order of dismissal is expressly disclaimed by counsel for appellant (hereafter the parties will be referred to as plaintiff and defendants, as they were below), providing the judge who entered such order was possessed of authority and jurisdiction.

The contested issues are: (1) Whether the court had jurisdiction over the parties and the subject matter. This issue arises from plaintiff's contention that the court erroneously refused his motion to remand the cause to the State court on the ground that the purported removal was not in compliance with law and was, therefore, void. (2) Assuming that the court had jurisdiction, whether Judge Igoe erroneously refused to disqualify himself from proceeding further in the matter because of an affidavit of personal bias or prejudice made by the plaintiff.

All the defendants (except McDonald) were duly served with summons, and all the defendants (except McDonald and Kutner) filed in the District Court petitions for removal from the State to the Federal court.

On April 10, 1950, a motion to dismiss the complaint was filed on behalf of all the defendants who had petitioned for removal, and on the same day a similar motion was filed by the defendant Kutner, who had not petitioned to remove.On April 17, 1950, counsel for plaintiff entered his "Special and Limited Appearance and Challenge to Jurisdiction of Court," on the ground that no bond accompanied defendants' petitions for removal. On the same date, plaintiff's motion to remand came on for hearing and the court, at the request of the defendants (or some of the defendants), permitted the filing of a bond in the penal sum of $200.00, which bond was filed on the same date.

It is not disputed by plaintiff but that the petitions for removal were in proper form and filed in apt time, and it is conceded before this court that the filing of the bond by the defendants was within the twenty-day period or, in other words, that such filing was within the time in which a petition for removal, accompanied by a bond, might have been filed. This statement is sufficient to bring into focus the point in issue without a statement of the dates on which the various defendants were served with process or the dates on which the petitions for removal were filed, as well as other facts which appear to be irrelevant.

Thus, there is squarely presented the issue as to whether a petition for removal in proper form and filed in the District Court in apt time, together with a bond not filed simultaneously with the petition but filed subsequently and within the time allowed for the filing of a petition, is sufficient to legally effect the removal. The procedure for removal is found in Sec. 1446, Title 28 U.S.C.A., Pars. (a) to (f), inclusive. Par. (a) provides for the form and contents of the petition and (b) the time during which the petition may be filed. Pars. (a) and (b) refer to civil actions and are not material to the instant question, and (c) refers to the time for removal in criminal cases and likewise is not material. Par. (d) provides: "Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed." Par. (e) provides in substance that upon the filing of the petition and bond, adverse parties shall be notified and that there shall be filed "a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." Par (f) is irrelevant to the issues of the instant case.

In the beginning, it may be noted, although we think it immaterial, that the defendants who filed the petitions for removal, being employees of the United States, acted under the belief that they were not required to file a bond in connection with their petitions. When at the hearing on April 17 it was contended by the plaintiff that defendants were being sued in an individual and not in their official positions and that they were, therefore, not exempt from furnishing a bond, defendants in order to obviate the point thus made obtained permission of the court, as heretofore shown, to file a bond.

Plaintiff contends that the word "accompanied" in Par. (d) means simultaneous and that a removal is not effected in the absence of the filing of a bond at the same time as the filing of the petition. No case to which we are cited or which we have been able to find has considered or decided this precise question. There are, however, numerous cases where the court has permitted the amending of either a defective petition or a defective bond, or both. In Chase v. Erhardt, D.C., 198 F. 305, the condition of the bond was not in accordance with the statute. The court stated 198 F. at page 307, "This defect in the bond relates to the mode of procedure and is not fatal to the defendant's right to remove." That court cites and quotes from Ayers v. Watson, 113 U.S. 594, 5 S. Ct. 641, 28 L. Ed. 1093.In the latter case, the court, in discussing the provisions of the removal statute as it then existed, stated 113 U.S. at page 598, 5 S. Ct. at page 642, "The second section defines the cases in which a removal may be made; the third prescribes the mode of obtaining it, and the time within which it should be applied for. In the nature of things, the second section is jurisdictional, and the third is but modal and formal. The conditions of the second section are indispensable, and must be shown by the record; the directions of the third, though obligatory, may, to a certain extent, be waived. * * * Application in due time, and the proffer of a proper bond, as required in the third section, are also essential if insisted on, but, according to the ordinary principles which govern such cases, may be waived, either expressly or by implication." Continuing, the court stated, "We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time within which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation."

While the Ayers case does not squarely meet the question before us, it comes close. It holds that the filing of a bond within the time required by statute is not jurisdictional, and that defects in the jurisdictional averments of the petition may be cured by amendment. It appears on this authority that plaintiff's contention, that the filing of a bond simultaneously with the petition is jurisdictional, must fail.

In National Quicksilver Corp. v. World Ins. Co. of Omaha, Neb., 8 Cir., 139 F.2d 1, the court stated the situation as follows: "The bond on removal was defective in an essential particular. The appellant moved for a remand of the case to the State court on the ground that the bond was fatally defective and was not subject to amendment after the time within which the case could be removed had expired. The motion to remand was denied, and the appellee was permitted to amend the bond." The court, in approving this procedure, stated 139 F.2d at page 2, "We think that the giving of a defective bond on removal does not defeat jurisdiction, and that the defect is subject to correction." (Citing cases.)

In Kramer v. Jarvis, D.C., 81 F.Supp. 360, 361, the court stated, "If a case be of such character that it is lawfully removable - and this action is manifestly of that sort - then the steps by which removal may be accomplished are held to be procedural, 'modal and formal'; and irregularities in their pursuit, and, in the case of the bond, its entire omission, have been considered to be subject to waiver, either by direct and express action to that end or ...


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