The opinion of the court was delivered by: Hoffman, District Judge.
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
"§ 1450. Attachment or sequestration; securities
"Whenever any action is removed from a State court
to a district court of the United States, any
attachment or sequestration of the goods or estate of
the defendant in such action in the State court shall
hold the goods or estate to answer the final judgment
or decree in the same manner as they would have been
held to answer final judgment or decree had it been
rendered by the State court." 28 U.S.C. § 1450
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:
"Rule 64. Seizure of Person or Property
"At the commencement of and during the course of an
action, all remedies providing for seizure of person
or property for the purpose of securing satisfaction
of the judgment ultimately to be entered in the
action are available under the circumstances and in
the manner provided by the law of the state in which
the district court is held, existing at the time the
remedy is sought, subject to the following
qualifications: (1) any existing statute of the
United States governs to the extent to which it is
applicable; (2) the action in which any of the
foregoing remedies is used shall be commenced and
prosecuted or, if removed from a state court, shall
be prosecuted after removal, pursuant to these rules.
* * *"
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 ...