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TANKO v. SAPERSTEIN

January 24, 1957

KALMAN TANKO, JAMES E. ARCHAMBAULT AND TITUS HAFFA, CO-PARTNERS, DOING BUSINESS AS PLASTIC PRECISION PARTS COMPANY, A CO-PARTNERSHIP,
v.
HENRY G. SAPERSTEIN, DOING BUSINESS AS H.G. SAPERSTEIN & ASSOCIATES, CALIFORNIA WHISTLE CO., A CORPORATION, TV WHISTLE CO., A CORPORATION, POLICE TV WHISTLE CO., A CORPORATION, AND WHISTLE MOLDS CO., A CORPORATION.



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 part:

"§ 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
  (1948).

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 ...


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