In the case just cited, it was further held that the fact that a
final decree upon the default of defendants had been entered in the
cause before the passage of the act of 1875, did not prevent a
removal of the cause under the act, after such decree had been set
aside and a rehearing granted.
In this case the parties complainant and defendant were citizens
of different states. The petition and bond for removal were in due
form, and the bond was sufficient.
The only ground, therefore, on which it can be urged that
Page 104 U. S. 49
the attempt to remove the cause to the circuit court was
unwarranted by law, and, therefore, ineffectual, is that the
petition therefor was not filed before or at the term, after the
passage of the act of 1875, at which the cause could be first
tried.
The appellee asserts that the decision of the Supreme Court of
Illinois, reversing the decree of the superior court, having been
made on October 11, while the October Term of the superior court
was current, the cause might have been redocketed and tried during
that term of the superior court, and that the redocketing of the
cause at the following November Term, and the filing of the
petition for its removal during that term, came too late.
The answer to this position is obvious. The cause could not have
been tried in the superior court until the transcript of the order
of the supreme court remanding it had been filed therein.
Under the statute of Illinois, both parties were allowed two
years within which to file the transcript. Either party might file
it, and no laches or default could be charged against either if it
were filed within two years. It follows that when the appellees
delayed the filing of the transcript from October 11 until November
23, they were exercising a privilege which the law gave them, and
lost none of their rights thereby.
Therefore, where the transcript of the supreme court was filed
within two years after the order remanding the case had been made,
a petition for removal filed at the same term must be held to have
been filed at the term at which the cause could have been first
tried, and to have been filed in due season.
If the decision of the state supreme court had finally disposed
of the case, there could, of course, have been no removal of the
cause to the federal court after such decision.
But according to the practice and jurisprudence of the State of
Illinois, where the decision of the supreme court reversing and
remanding a cause in equity does not involve the merits, the case,
upon the filing of the transcript in the court below, stands for
rehearing in that court.
Chickering v. Failes, 26 Ill.
508;
s.c., 29
id. 294;
Wadhams v. Gay,
73
id. 415;
s.c. 83
id. 250;
Pettilon v. Noble, 7 Biss. 450.
Page 104 U. S. 50
This cause was reversed by the state supreme court solely on the
ground of the error of the superior court in admitting incompetent
evidence. When, therefore, the cause was remanded, it stood for
rehearing as soon as it was redocketed in the superior court.
We are of opinion, therefore, that the case was properly removed
from the Superior Court of Cook County to the circuit court of the
United States.
The next ground of error assigned is that the circuit court
admitted in evidence the depositions of Scott, Weeks, Bartholomew,
and Hinckley.
It is perfectly clear that under the Act of Congress, Rev.Stat.
sec. 858, the persons named were competent witnesses in that court.
This point has been expressly ruled by this court in the case of
Potter v. National Bank, 102 U. S. 163,
brought up on error from the Northern District of Illinois. It was
also held in the same case that where there was a conflict between
the act of Congress and the law of the state in regard to the
competency of witnesses, the United States court was bound to
follow the act of Congress. The question is therefore reduced to
this: does the fact that while the case was pending in the state
court, these witnesses were held by that court to be incompetent
under the state law preclude them from testifying in the case after
its removal to the United States court? We think this question must
be answered in the negative.
The federal court was bound to administer the law of evidence as
prescribed by act of Congress, unless what had transpired in the
state court presented an insuperable obstacle to that course. This
the appellants claim was the fact. They say that the transfer of a
case from the state to a federal court does not vacate what has
been done in the state court previously to removal; that what has
been decided in the state court is
res judicata and cannot
be reexamined. In support of this position
Duncan v.
Gegan, 101 U. S. 810, and
other cases are cited. The law as settled by this court is
correctly stated by appellants.
But the rulings of the circuit court in the progress of the
cause after its removal did not reverse or vacate anything
which
Page 104 U. S. 51
had previously been adjudicated by the state court. The decision
of the latter court was that under the state law, certain witnesses
were incompetent in the state court. The federal court decided
that, under the laws of the United States, the same witnesses were
competent when offered in a United States court. Here is no
conflict of opinion, and no unsettling of any matter which had been
adjudged by the state court. The federal court was bound to deal
with the case according to the rules of practice and evidence
prescribed by the acts of Congress. If the case is properly
removed, the party removing it is entitled to any advantage which
the practice and jurisprudence of the federal court give him.
In this instance the court below followed the law of evidence as
prescribed by Congress.
In doing so it did not reverse any ruling of the state court,
and, we think, committed no error.
No other evidence admitted by the circuit court is complained of
by the appellants as incompetent.
The counsel of both parties have discussed in their briefs the
question whether the evidence set out in the record is sufficient
to support the decree of the circuit court. No error has been
assigned on the ground that the testimony was insufficient. It is
therefore unnecessary to discuss this point. We may remark,
however, that in our opinion the evidence amply justifies the
decree.
There is no error in the record.
Decree affirmed.